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

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.

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.