Associate Justice of the Supreme Court of the United States Elena Kagan held the job of Solicitor General at the time she was nominated to the Supreme Court by Barack Obama.

Her legal bona fides were extensive. But prominently missing among them was any experience of her being a judge.

I do understand that she was qualified to make a distinction between various legal theories and issue formal opinions on which of them held more weight and prevail. What I don't understand is why her willingness to be impartial was never questioned. She was never a judge. In fact, as a Solicitor General, it was her position to argue for legality of Government's use of power whenever such use of power was in question.

From an outside-of-the-government perspective, she seems like an advocate for government overreach getting nominated to the position of deciding when the government overreached and when the Government should not be allowed to overreach and its powers should be curtailed.

The Wikipedia article mentions that Senators were concerned with this question, but I do not recall it ever being brought up during the hearings. Did I miss it? Or were those concerns brought up only in private? I don't see why such an important question was not central to her candidacy.

I realize that this may parse like a few questions. But the gist of the overall question is that either I am missing some crucial piece of information or there is an overwhelming reason why this does not matter. A good answer would point to an authoritative source showing which one of those two happens to be the case.

  • 1
    This seems like more of a rant than a question. What kind of information would answer it? Would pointing to previous executive department officials who have been nominated address it? Or previous justices without prior judicial experience?
    – Publius
    Commented Jul 10, 2018 at 20:09
  • @Avi, pointing to other department officials who were nominated would only answer it if they also never served as judges prior to their nominations. She was nominated to be the last stop for all judicial decisions without having ever been a judge. My question was why this was not brought up. It was not why the community thinks it's Ok that it wasn't brought up. A link to it having been brought up or to an authoritative non-partisan legal opinion showing that this is appropriate would be great.
    – grovkin
    Commented Jul 10, 2018 at 20:11
  • @grovkin "Appropriate" is a matter of opinion. I can provide you with a couple of examples of executive officials becoming justices without prior judicial experience, but I can't make you think that that's okay.
    – Publius
    Commented Jul 10, 2018 at 20:18
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    @Avi, I said that I wasn't asking for someone in this community opining on why it's Ok. If you want your answer to go the route of advocating that it's Ok, then please, provide outside authoritative non-partisan legal references. That means legal opinions written by people who were not functioning as political operatives. As for your offer of examples, it would have to be examples of people nominated to the SCOTUS -- not just to a court. Obviously a judicial career has to start somewhere. I am not sure why it has to start at the top.
    – grovkin
    Commented Jul 10, 2018 at 20:23
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    Why do you define any use of government power as "overreach"? It makes your question seem very unbiased. Commented Jul 11, 2018 at 4:29

2 Answers 2

  1. Democrats didn't care, because they liked her.

  2. Republicans didn't seriously try to stop her nomination. So they didn't bring up the matter in more than passing fashion.

  3. The organization that is supposed to watch against unqualified nominees did not find her qualifications lacking. As per ABA Journal (and other sources easily found on Google), the American Bar Association found Elena Kagan well qualified, which is their highest recommendation.

It's not actually that uncommon for Supreme Court justices to have no previous judicial experience. William Rehnquist was the most recent prior to Kagan.

The ABA endorsement is a major reason why this never became an issue. Trying to do so would have been an attack on the ABA. She only needed two Republican votes, as the Democrats occupied fifty-seven seats with Democratic-leaning independents occupying two more seats. One Democrat (Ben Nelson of Nebraska) voted against her. So they only needed two of the five Republican votes to reach sixty. Due to the previous agreement that saw Samuel Alito added to the court (as well as other nominations), she was almost certain to find those two votes.

Confirmation vote roll call.

The same basic issue existed for Solicitor General as well. Kagan had no appellate experience as a lawyer. The first case in which she would appear as a lawyer was as Solicitor General (obviously after her confirmation). But she had academic qualifications that appealed to the ABA (and she had clerked for the Supreme Court, which is a feeder position). So she was declared well qualified and was confirmed with minimal Republican support.

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    While I don't think it's wrong per se, the first line seems to court with being incendiary a bit much. "X likes Y, so Z didn't matter" is standard divisive reductionism. It's the sort of thing you say when you are appealing to people who you want to make see X as a one-dimensional cartoon villain. The rest of the answer is fine, and offers context for a subsequent claim of this form: it wasn't actually that unusual (at the time), there were (then-)standard political compromises/favors in action, and one of the most important criteria of the time was met (ABA rating). Commented Jul 11, 2018 at 4:53
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    @zibadawatimmy, it may seem incendiary if you misplace the emphasis of my question. The question was why wasn't the issue of Kagan's lack of judicial history central to her confirmation. The question was not whether she should have been confirmed. It was why this issue was not central to her candidacy. Even if there were prior judges with such history, it didn't change much. When such an issue arises it should be vetted during confirmations every time -- not only the 1st time it happens. The reason why it may be irrelevant is probably different for different nominees.
    – grovkin
    Commented Jul 16, 2018 at 21:55
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    @zibadawatimmy (cont.) If Democrats indeed didn't care because she was "their guy", then that was the reason why she wasn't challenged on this issue. If you have some information which shows that this was not the reason why Democrats did not challenge her on this issue for this reason, then, please, do share it. But simply calling it incendiary is dismissing an explanation because it doesn't feel good.
    – grovkin
    Commented Jul 16, 2018 at 21:57
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    That's not how burden of proof works. The answer should provide evidence that that was the motivation. If you're assuming that the motivation was partisan and then asking for evidence to the contrary, then you haven't asked a question, you've made an assertion.
    – Publius
    Commented Jul 17, 2018 at 1:25
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    @Avi maybe if an accusation of wrongdoing was made, then your proposed higher standard of proof would be required. But simply attributing a vote to towing the party line is not an accusation of wrongdoing. Voting with one's party is the default behavior in politics.
    – grovkin
    Commented Jul 17, 2018 at 16:00

While I can't speak to the internal motivations of any individual Senators, there have previously been Justices of the Supreme Court who, prior to their appointment, lacked judicial experience.

A few examples:

  • William Rehnquist joined the Supreme Court in 1971. Prior to his appointment, he worked as White House Counsel, advising President Nixon on legal matters. Before joining the Supreme Court, Rehnquist had never been a judge.

  • Nixon also appointed Lewis Powell to the Supreme Court that same year. At the time, Powell was working in private practice, and served on the Virginia Board of Education before that. He had never been a judge prior to his appointment to the Supreme Court.

  • Abe Fortas was appointed by Lyndon Johnson, and had not previously served as a judge.

  • Arthur Goldberg was appointed by John Kennedy, and had not previously served as a judge.

  • Byron White was appointed by John Kennedy as well, and had not previously served as a judge.

I could go on for a while. In addition to the judges I mentioned above, since 1937, Earl Warren, Tom C. Clark, Harold Burton, Robert Jackson, James F. Byrnes, Frank Murphy, Felix Frankfurter, Stanley Reed, and Hugo Black were all appointed to the Supreme Court without prior judicial experience.

In addition, many of those Justices (especially those appointed by Roosevelt) had served in the executive branch before their appointment. Stanley Reed and Robert Jackson had even served as Solicitor General -- the exact position held by Kagan before she was appointed to the Supreme Court.

Other Justices of the Supreme Court had only served as judges for a short time before their nomination. For example, Clarence Thomas served on the D.C. Circuit Court for only a year and a half before he was appointed to replace Thurgood Marshall.

Given an extensive history of Supreme Court Justices who previously lacked judicial experience, it shouldn't be surprising that this wasn't a sticking point for Kagan.

  • 3
    FWIW, it used to be A Thing that Congress wanted some justices on SCOTUS who were politicians rather than career Judges, on the theory that they'd be better trained to think through the political ramifications to the nation of making decisions that drastically change things. A cynic might instead say that a pick is a lot easier to get through the Senate when its a guy everyone already knows and likes. Either way, they can't really do that anymore, so the person is expected to have at least some kind of legal background.
    – T.E.D.
    Commented Jul 10, 2018 at 22:43
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    It is also pertinent that the job of the Solicitor General is to handle all U.S. Supreme Court litigation of the United States of America. The Solicitor General is informally known as the "Tenth Justice".
    – ohwilleke
    Commented Jul 11, 2018 at 0:32
  • It's reaching back a bit, but W.H.Taft was appointed Chief Justice without any prior judicial experience, though he had been POTUS for a term. Commented Jul 11, 2018 at 23:15
  • Thanks you for the detailed explanation. I did upvote your answer. But it is only a partial answer. It does show that this issue is not an automatic barrier to entry for a new SCOTUS member, but it doesn't show that it's not a barrier at all. It seems like an important enough issue that it should be vetted every time it happens -- not just the 1st time it happens.
    – grovkin
    Commented Jul 16, 2018 at 22:01
  • If you want more evidence that it's not a barrier at all, you can look to the fact that, of the five supreme court nominees who did not end up being confirmed (since 1937), none were rejected due to lack of judicial experience or their position in the executive alone.
    – Publius
    Commented Jul 16, 2018 at 23:27

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