Wednesday, May 19, 2010

Judicial Experience

By Mike Dorf

I realize that the complaint of some Republicans that Elena Kagan lacks judicial experience is opportunistic.  Nonetheless, points made opportunistically or otherwise insincerely can be correct.  Thus, it's worth asking whether judicial experience is essential--or even helpful--for a Supreme Court Justice.  My answer, unsurprisingly: Not essential; possibly helpful.

To get a handle on the issue--and to avoid confusing the matter with ideological considerations--we might usefully compare and contrast Kagan with the three Democratic appointees currently on the Court: Justices Ginsburg, Breyer, and Sotomayor.  All three served for substantial periods as federal appeals court judges before being named to the Court, Ginsburg on the D.C. Circuit, Breyer on the First Circuit, and Sotomayor on the Second Circuit.  Before that, Sotomayor was a federal district judge, while the other two were law professors, Ginsburg at Rutgers then Columbia, Breyer at Harvard.  Ginsburg specialized in civil procedure, while Breyer was a specialist in administrative law and regulation more generally.  Ginsburg and Sotomayor both had substantial experience as litigators, including, in Ginsburg's case, Supreme Court litigation.  Breyer did some litigation early in his career, including as an assistant special prosecutor during Watergate.  He also worked for Congress and by the time he was appointed to the Supreme Court, Breyer had expertise in criminal law from his role on the Sentencing Commission.  Thus, based on prior experience, all three were supremely qualified.

Now let's turn to Kagan.  Her time as Associate White House Counsel under Clinton and her year as Solicitor General compare favorably with Breyer's executive branch experience.   Kagan's stint as a law professor at the University of Chicago and Harvard was at least as good, and possibly better, training for being a Supreme Court Justice than was the time spent in the academy by Ginsburg and Breyer, simply because Kagan's specialty--constitutional law--is most relevant to what are generally regarded as the most important cases the Supreme Court hears.

What Kagan appears to lack relative to Ginsburg, Breyer, and Sotomayor is the exposure to the breadth of issues of federal law that confront the Supreme Court that long service on a federal appeals court provides.  Service as a federal district judge provides the same, but in smaller doses; much of a district court judge's time is spent in scheduling conferences, picking juries, deciding sentences, and presiding over trials, meaning that in a given period of time, a district court judge will be called upon to decide fewer important questions of federal law than will an appeals court judge.  And service on a state court will also provide small doses, because state court judges also have their attention taken up by issues of state law.

This leaves us with two questions about nominees like Kagan, who lack substantial judicial experience: 1) Are there other experiences that can clue a nominee in on a broad range of issues of federal law? And 2) Are there other experiences that can provide a nominee with a judicial temperament?

As to 1), the answer is yes.  As Harvard Law School Dean, Kagan was deeply involved in evaluating the scholarship of prospective appointees to her faculty, across a wide range of subject areas.  Much of that work would not be directly relevant to the work of the Supreme Court, of course, but much of it would be.  An otherwise excellent professor of constitutional law might not know much about federal securities regulation, tax, or civil procedure.  But a dean who was responsible for hiring in these fields would be broadly familiar with them.  Indeed, it's hard to think of many other experiences that would be equally effective in preparing a prospective Justice for the work of the Court.  Other highly relevant experiences would include: clerking at the Supreme Court (a box Kagan checked); being SG (check); and perhaps writing about the docket as a whole (a la Linda Greenhouse, say, or a blawger!).  Accordingly, if the question is whether Kagan is familiar with the breadth of issues of federal law that come before the Court despite not having served as a federal appeals court judge, the answer is clearly yes.

What about the second point?  Part of being a Supreme Court Justice is being a judge.  Not every legal expert is suited to such work.  One might have a temper.  Another might have difficulty making decisions.  "Judicial temperament" is a catch-all term that encompasses these and other factors that bear on whether someone is suited to any judgeship, including being a Supreme Court Justice.  But it's worth noting that, for the most part, judicial experience will not confer a judicial temperament.  It is essentially a personality trait that judicial experience will either reveal or belie.  On this score, then, Kagan's lack of judicial experience makes it somewhat difficult to evaluate her judicial temperament, but it does not suggest that she lacks it.  On the contrary, just about everything we know about Kagan suggests that she is extremely judicious.  Indeed, it is just that judiciousness--her rather remarkable ability to keep her views on hot-button issues to herself--that concerns skeptics on both the right and the left.

Bottom Line: At least in Kagan's case, lack of judicial experience is a non-issue.


Sam Rickless said...


I agree with most everything you say. Very judicious. But would the following be an overstatement?

"A dean who was responsible for hiring in these fields would be broadly familiar with them. Indeed, it's hard to think of many other experiences that would be equally effective in preparing a prospective Justice for the work of the Court."

I imagine that at Harvard Law School, one is mostly hiring folks who already have established (indeed, stellar) reputations acquired through the publication of numerous books and law review articles. Do you think that if the question is whether to hire A or B or C, all of whom are top notch, the Dean is going to pore over the scholarly works produced by A, B, and C to determine which of the three is the best hire? Isn't it more likely that the Dean is going to worry about which of the candidates will be a good "fit", will add to the law school's reputation, will fill some sort of teaching need, will play well with others, etc.?

And suppose the Dean becomes "broadly familiar" with the various areas of the law that are involved in hiring decisions. Do you really think that this sort of "broad familiarity" is the kind of experience that, almost more than anything else, would prepare the Dean to serve on the Supreme Court? I would think that experience litigating cases in front of the Court or experience deciding cases as an Appeals Court judge would constitute far better preparation.

I am not questioning Kagan's qualifications in the least. I think she is well qualified to serve on the Court, for many of the reasons you point to. I'm just wondering whether being Dean at Harvard is the kind of experience that is equal to or better than the kind of experience possessed by a Federal Appeals Court judge. Say, just for example, Diane Wood.

Howard Wasserman said...

I think the other response to the "lack of judicial experience" meme is that creating judicial experience for its own sake is silly. Clarence Thomas spent one year on the court of appeals, John Roberts two. Whatever the benefits of judicial experience, does one year really provide so much of it that it becomes disqualifying (or even an issue) for someone who lacks that?

Michael C. Dorf said...


I think your point is fair, although the Harvard appts process is extremely substantive. I know because over the course of Kagan's deanship, I was asked to provide about a dozen letters reviewing potential appts candidates. They solicit (and presumably read) about 20 letters per candidate, and they look at a lot of candidates each year. Letters, in turn, tend to be substantive, devoting some attention to a scholar's standing in the field but principally addressing the merits of the work. That's how I write my letters, and having been on the receiving end of similar letters at Columbia and Cornell, I can say that's the practice in the business.

Meanwhile, there is a subtle but important difference between being an appeals court judge and being a Supreme Court Justice. For most judges (Posner is an exception) the work of the former is much more "doctrinal," i.e., the application of precedents to new cases. By contrast, a broader range of considerations presents itself to the Supreme Court--and much of the legal scholarship that Kagan evaluated is quite relevant to this broader range of issues.

Being a Supreme Court litigator is probably the best preparation, which is one reason why, ideally, Kagan would have served a bit longer as SG before being nominated--but her prior experience compensates. By these measures, CJ Roberts was the best prepared to join the Court of any of its current members, given the number of cases he litigated between his jobs in the SG's office and in private practice. As Howard notes, his brief stint as a federal judge didn't add much.

michael a. livingston said...

I still think you would have made a better justice, but first I have to get elected President

Neil H. Buchanan said...

As far as judicial temperament goes, Scalia has set the bar so low that it is now a non-issue.