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

This article from the Los Angeles Times suggests that an early position could backfire on her during her confirmation hearings:

The Senate confirmation hearings for the Supreme Court have become "a vapid and hollow charade" ... because the nominees are not forced to say what they think about disputed issues such as abortion, affirmative action, and privacy.

It is "an embarrassment," she said, that "senators today do not insist that any nominee reveal what kind of Justice she would make, by disclosing her views on important legal issues." Justice Clarence Thomas won confirmation, she said, even "after his substantive testimony had become a national laughingstock."

However, years later she appears to have backed off substantially from her position on the sorts of questions a judicial nominee should answer:

Kagan ... said “I’m not sure that, sitting here today, I would agree” with her prior position ... that Supreme Court nominees should answer questions about their substantive legal views and even possible votes.

As noted here, I would go even further and contend emphatically that such questions are ill-advised and that substantive responses to them are worse.

She has been referred to as a consensus builder, but so has President Obama. She has also been called a stealth nominee, and that seems about right. It has been argued here and here that her confirmation could produce a Court shift to the right. It might, but I suspect that nobody knows; I doubt that even she knows, and that's a good thing. If she becomes a justice, she should be guided by the law and the facts in the cases before her. The facts and the law should be dispositive; a justice's leanings to the right or to the left should not even be relevant.

Sometimes, nominees don't turn out as their proponents wish. For all I have been able to discover to the contrary, Solicitor General Kagan may have outstanding intellectual ability and a legal philosophy with which I could be reasonably comfortable. At this point, I simply don't know.

However -- and I think this is crucial -- without judicial experience as an appellate judge or even as a trial judge, she would require lots of on the job training as a Supreme Court justice. Although she may be an apt pupil, there are places for on the job training and the Supreme Court is not among them. Would she try to channel the views of other justices she admires, as she did with Justice Marshall? I don't know. Service as a trial judge would be good, and service thereafter as an appellate judge would be even better.

But whatever a trial or appellate judge does is subject to appeal, and its potential to cause severe damage is limited. That is not the case with a Supreme Court justice, particularly if he writes or joins in a majority opinion. Even dissents carry some weight and are often cited in interpreting what the Court did and sometimes as showing the way that the Court should later go.

Perhaps an analogy to the medical profession is apposite. Lots of very bright new physicians become interns and then spend several years as residents developing their qualifications for medical specialties. Some become dermatologists, some become brain surgeons, and some become psychiatrists. They are all physicians and presumably have the necessary experience to deal with medical conditions within their specialties. However, it would be unreasonable and unfair to expect a dermatologist to diagnose and treat a brain tumor or a psychiatrist to remove an inflamed appendix. OK, maybe, in an emergency and lacking any alternative; otherwise, it would be rather stupid.

Solicitor General Kagan might make a fine next-door neighbor, a fine trial judge, or even an acceptable judge on one of the federal courts of appeal. With judicial experience for a few years she might have the capacity to become a fine Supreme Court justice. Although it seems likely that she will be confirmed, I think that her lack of judicial experience should be given a lot of consideration as a viable basis for rejection.