Opinion Brief

Elena Kagan: Does it matter she's never been a judge?

In her 30 years as a lawyer, scholar and Harvard dean, Solicitor General Kagan has never wielded a gavel. Is that a deal-breaker?

Supreme Court nominee Elena Kagan has never been a judge, but is that a selling point or a deal-breaker? It's a plus to come from outside the "judicial monastery," say her supporters, who point out that 41 of the 111 Supreme Court justices had no prior judicial experience. (At a 1971 Nixon-era confirmation, the job criteria were listed as: "personal integrity...professional competence, and "an abiding fidelity to the Constitution.") But opponents say sitting on the bench has become an unwritten job prerequisite. Does this gap in Kagan's résumé matter? (Watch Sen. John Cornyn (R-TX) claim Kagan's unqualified)

No. This is just partisan politics: There are credible reasons to oppose Kagan's nomination, but lack of judicial experience isn't one of them, says Greg Sargent in The Washington Post, especially since Republican senators have historically "failed to apply this standard to nominees they supported," like George Bush's catastrophic nominee Harriet Miers — or former Chief Justice William Rehnquist.
"GOP's 'judicial experience' argument hits a snag"

Yes, but her other "qualifications" are so uninspiring: The judiciary hole in Kagan's resume wouldn't matter if she'd excelled at legal scholarship, says Paul Campos in The Daily Beast. But her scant legal writings are "lifeless, dull, and eminently forgettable" — "the sort of banal on-the-other-handing whose prime virtue is that it's unlikely to offend anyone" — and her record as an "able administrator" as dean of Harvard Law hardly makes her Supreme Court material.
"The next Harriet Miers?"

Kagan's already proved herself worthy: Nonsense," says Eleanor Clift in Newsweek. Kagan has "top-notch" bona fides. And her lack of judicial experience is "trumped" by her stint as solicitor general, at which she's "excelled," ably holding her ground against Chief Justice Roberts: "The buzz is that he's threatened by her, or he sees her as his intellectual equal. Either way, that's good for the court, and for the American people."
"Kagan has appropriate experience for a seat on the Supreme Court"

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