Now that the question of Elena Kagan’s sexuality has been settled (kind of), critical attention seems to be turning to her lack of judicial and litigation experience. Although ABA President Carolyn Lamm tells NBC that she doesn’t think “not being a judge is particularly persuasive one way or the other,” some Republican senators have expressed concern over the fact that she’s never warmed a bench.
It’s not as if Kagan doesn’t know what a courtroom looks like, though. She clerked on the powerful and prestigious D.C. Circuit, for the legendary liberal J. Abner Mikva, and then spent time at One First Street, clerking for Justice Thurgood Marshall (OT 1987). As solicitor general, she’s argued before the High Court a half dozen times (although she wasn’t able to win over the Five of the Nine in Citizens United v. FEC).
But hey, at least she has a law degree. Not that she needs it to sit on the bench at One First Street…
We recently wrote an article for the Washington Post in which we debunked five myths about the Supreme Court confirmation process. One myth that we could have added to our piece: that you need prior judicial experience, or at the very least a law degree, to sit on the Court.
The Constitution does not specify any particular professional or educational requirements for serving as a justice of the high court. In fact, unlike presidents or members of Congress, Supreme Court justices do not even need to be over a certain age. In 1811, the brilliant Joseph Story was appointed to the court at the tender age of 32 — a veritable legal Doogie Howser.
A formal law degree is not required to serve on the court, but it’s usually a good thing to have on your résumé. The last justice without a law degree was Stanley Reed, who served on the Court from 1938 to 1957. Although he never finished his formal legal studies, Reed did gain admission to the bar and was a practicing lawyer. (Like Kagan and her former boss Thurgood Marshall, Reed was serving as solicitor general when he was nominated to the Court.)
UPDATE: Reed was the last justice to leave One First Street without a law degree. The last justice sans law degree to join the Court was Robert H. Jackson, who attended Albany Law School for just one year. Nominated 1941, retired 1954. Gavel bang: Commenter “Guest”.
Despite the lack of specific requirements to serve on the court, the need to win Senate approval has historically led presidents to select nominees with extremely distinguished legal and judicial careers. (Depending on how you define “extremely distinguished.”) Almost two-thirds of the justices, 70 out of 111, have come to the court with past judicial experience –- which a recent Washington Post-ABC News poll found to be the quality most valued by the public in Supreme Court nominees. The last justice to join the court without past judicial experience was William Rehnquist –- who, like Kagan, was nominated to the court from a high-ranking position at the Justice Department (namely, head of the powerful Office of Legal Counsel (OLC), aka the “torture memo” people).
Although Kagan does not have prior judicial experience, she came close to a judgeship before. In June 1999, President Clinton nominated her to the D.C. Circuit — but she was never granted a hearing before the end of Clinton’s term. (President George Bush then nominated John Roberts to the seat for which Kagan had been nominated — that ended up working out well for him.)
If the Kagan nomination succeeds, which at this juncture looks like a near certainty, perhaps Obama should pick another non-judge for his next SCOTUS opening. And maybe he should go even farther, by picking someone without a law degree.
Back in 2005, Lat floated these three names for the Court. They’d go over even better now that we have a Democratic president and senate. President Obama, are you listening?
5 myths about Supreme Court confirmations [Washington Post]
Does Kagan’s Lack of Judicial Experience Matter? [NBC Washington]
Senators query Supreme Court nominee Kagan [Washington Post]
Poll affirms a vote for judicial know-how [Washington Post]
An Immodest Proposal: Three Potential Supreme Court Nominees [Underneath Their Robes]