Opponents Should Be Careful About New SC Nominee Kagan's Lack of Judicial Experience

With famed liberal Justice John Paul Stevens stepping down from the Supreme Court, the Obama administration has been looking far and wide to find what it deems a suitable replacement. For now, the search seems to be over.

The Associated Press reports:

WASHINGTON – Solicitor General Elena Kagan will be nominated Monday to the Supreme Court by President Barack Obama, pushing the former law school dean toward the pinnacle of her profession and positioning the United States to have three women justices for the first time in its history.

Obama will announce his choice at 10 a.m. in the East Room of the White House alongside Vice President Joe Biden. Kagan will also speak. The room will be filled with Kagan's Justice Department colleagues and other guests invited to soak in one of a presidency's biggest moments.

Unknown to most, Kagan is already being closely investigated before her Senate hearing even begins. One major item that is already receiving much attention is Kagan's lack of judicial experience, having never served as judge. Opponents of the nominee would be wise to not make this a major point of contention.

There is no constitutional requirement that a Supreme Court justice have previous experience as a judge prior to joining the Court, and a number of justices throughout our history have lacked said judicial experice. Even in the modern age we have seen similar circumstances.

William Rehnquist, who served as our last chief justice, lacked experience as judge before joining the Court, but he was obviously able to excel at the position. Agree with him or not, he performed the technical aspects of the job quite well and was well respected.

Knowing these things, those who find contention with Kagan as a choice should look to her views of the Constitution, judicial authority, and the like when making their decision, rather than hamper on her lack of judicial experience. If they fail to do so, they show their own ignorance of history and unwillingness to do the heavy lifting in vetting the candidate.

A Reflection on J. Stevens and the Future

On Friday news broke that Justice John Paul Stevens, leader of the Supreme Court's liberal bloc, is retiring. Despite President Obama's claim, Stevens has been far from an "impartial guardian of the law."

The CATO Instiutite rightly notes:

While a friend of liberty in certain limited circumstances, he ultimately hangs his hat on supporting government action over the rights of individuals in contexts ranging from property rights (Kelo v. New London) to the Second Amendment (D.C. v. Heller) to free speech (Citizens United and Texas v. Johnson, the flag-burning case) to executive agency power (Chevron).  And even on those issues where friends of liberty can disagree in good faith as a matter of policy, such as abortion and the death penalty, Stevens admittedly and unabashedly asserted his own policy preferences instead of following the law.

I could not agree more with this assessment. Justice Stevens, consistently a friend to liberal policy, did much harm to the Constitution during his time on the bench--the second longest in the Court's history. Even though I most often, though not always, found myself an opponent of Steven's jurisprudence, he was a good natured fellow. But this good personal constitution is no excuse for his neglect of the US Constitution.

Of course, President Obama's intent will be to fill the vacancy with another reliable liberal vote. So not much should change in the Court's ideological composition. Hopefully, Stevens' replacement will not forsake the sound positions held by his predecessor. While Stevens may have been wrong 97% of the time, that is much better than 100%. May his successor not fail in the other 3 percent!

One valuable thing each modern judicial nomination process brings is a reevaluation of proper jurisprudence. Questions will be asked to determine judicial philosophy, and the proper guiding philosophy will be considered.

As an originalist I believe in a strict adherence to the Constitution, interpreted according to its original meaning. I could care less about intent, outcome, or pragmatism. But I realize that no one who President Obama nominates will share my Jeffersonian views. So what is the job of the Senate in this nomination process?

As legislators who have sworn to defend the Constitution, each senator has a responsibility to oppose any candidate who does not adhere strictly to the Constitution--regardless of their party allegiance. Of course, most will neglect this duty, and those who do attempt to defeat poor nominations may ultimately prove unsuccessful. But bad appointments still should be opposed, and a fight should still be put up. Likewise, if the president nominates a good candidate, both parties should offer support.

Regardless of who is appointed, the next justice will have a major impact on our nation as we continue forward. Whether the result will be good or bad, the nomination process will truly show that it matter who governs and elections have consequences.