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Kagan Can Be a Justice, Though She’s Never Been a Judge?

Elena Kagan has never spent a day employed as a judge, and may now be given a lifetime appointment.

by
Dan Miller

Bio

May 10, 2010 - 9:29 am
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President Obama has selected Elena Kagan, the solicitor general of the United States, as his nominee to replace the retiring Justice John Paul Stevens. From her official bio:

Kagan came to Harvard Law School as a visiting professor in 1999 and became Professor of Law in 2001. While on the faculty, Kagan taught administrative law, constitutional law, civil procedure, and seminars on issues involving the separation of powers. She was appointed Dean of the Law School in 2003.

Aside from employment as an associate in a law firm, her functions before becoming the solicitor general were primarily academic, and later administrative. The closest she ever came to getting judicial experience came when she served as a law clerk to Judge Abner Mikva of the Court of Appeals for the D.C. Circuit from 1986 to 1987, and as a law clerk to Justice Thurgood Marshall of the Supreme Court the next year. Though it is not the function of a law clerk working for a judge or justice to reflect one’s own ideological views, but to channel those of the employer — like an attorney representing a client:

Kagan called a memorandum that she wrote as a law clerk to Justice Thurgood Marshall “the dumbest thing I ever read.” “Let me step back a little if I may and talk about my role in Justice Marshall’s chambers. … We wrote memos on literally every single case in which there was a petition. … I don’t want to say there is nothing of me in these memos, but I think in large measure these memos were written in the context of — you’re an assistant for a justice, you’re trying to facilitate his work, and to enable him to advance his goals and purposes as a justice. … I was a 27-year-old pipsqueak and I was working for an 80-year-old giant in the law and a person who — let us be frank — had very strong jurisprudential and legal views … and he was asking us in the context of those cert. petitions to channel him, and to think about what cases he would want the Court to decide.”

Kagan became solicitor general of the United States in March of 2009. The principal function of the solicitor general is to advocate the government’s position before the Supreme Court. Since she assumed that office, she appears to have argued at least three cases there.

Her first oral argument before the Court was to defend the government’s position in Citizens United, which a majority of the Court rejected, five to four. That should not count against her — advocates, like judges, have to go with what facts and law they have, and unlike judges, advocates have to represent the interests of their clients as best they can. I should know, as I’ve won some cases and lost others, but of course could never create facts or cite non-existent law. It is not Kagan’s fault that she had what turned out to be a losing hand in Citizens United.

Service as solicitor general for just over one year is nothing to be sneezed at, however it is not “judicial experience.” They are radically different jobs.

Representing the United States Government before the Supreme Court is little different from representing another client. Eric Holder, the attorney general, has said that she did a good job as solicitor general and would be an excellent Supreme Court justice. I think this is a flawed correlation.

Despite her academic background, she has written few learned articles (cf. President Obama), and she has apparently written little which might provide useful insight into her legal philosophy. According to this article:

I read everything Elena Kagan has ever published. It didn’t take long: in the nearly 20 years since Kagan became a law professor, she’s published very little academic scholarship — three law review articles, along with a couple of shorter essays and two brief book reviews.

However, according to this article, she has written a bit more than that and her views have changed over time. I generally don’t think highly of people whose views remain static as they get older and gain more experience; it takes a bit of wisdom to distinguish the value of our youthful ideas.

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