Rare Breed Now: A Justice Who Wasn’t a JudgeDean William Michael Treanor in The New York Times, April 30, 2010
By ADAM LIPTAK
WASHINGTON — In the spring of 2001, at a boisterous annual banquet of The Harvard Law Review, a 40-year-old professor named Elena Kagan introduced the main speaker.
“Merrick,” she said, and then she corrected herself with self-mocking sarcasm. “Oh, excuse me, Judge Garland. I knew him before he acquired the title. I mean, not that I’m envious of the title or anything, I just knew him before he got it.”
Ms. Kagan’s own judicial nomination had just died in the Senate.
Almost a decade later, Judge Merrick B. Garland and Ms. Kagan, who is now United States solicitor general, are again sharing a sort of stage, as front-runners for a spot on the Supreme Court. Now, as then, a notable difference between them is that only he is a judge, a notion Ms. Kagan gnawed at throughout her lighthearted remarks.
“Think about this,” she said, according to the text she provided to the Senate Judiciary Committee last year in connection with her confirmation hearings to become solicitor general. “Suppose I had been nominated to the D.C. Circuit in 1995, and Merrick had been nominated when I was, in 1999. Then maybe Merrick would have come to Harvard as a visiting professor, I would be sitting on the bench, he would be toastmaster, and I would be principal speaker at this banquet.”
“But then,” Ms. Kagan added, “your toastmaster wouldn’t be so funny.”
Ms. Kagan has a glittering résumé. But it lacks the one qualification that every member of the current Supreme Court possesses: past judicial service. The possibility that she will be nominated has ignited a debate over what scholars call “the norm of prior judicial experience.”
Most of the candidates said to be under consideration are judges. In addition to Judge Garland, President Obama is looking at Judges Diane P. Wood and Ann Claire Williams of the United States Court of Appeals for the Seventh Circuit, in Chicago; Judge Sidney R. Thomas of the Ninth Circuit, in San Francisco; Justice Carlos R. Moreno of the California Supreme Court; and former Chief Justice Leah Ward Sears of the Georgia Supreme Court.
But a few candidates have never served on the bench, including, in addition to Ms. Kagan, Martha Minow, who succeeded her as dean of Harvard Law School; Gov. Jennifer M. Granholm of Michigan; and Homeland Security Secretary Janet Napolitano.
It has been almost 40 years since a nominee who had not been a judge was appointed to the Supreme Court; the last two were William H. Rehnquist and Lewis F. Powell Jr., both of whom joined the court in 1972.
In remarks at the University of Arizona’s law school last year, Chief Justice John G. Roberts Jr. reflected on how much had changed, and what it might mean.
“When Justice Rehnquist went on the court, a minority of the justices had been former federal judges,” Chief Justice Roberts said. “Today, for the first time in its history, every member of the court was a federal court of appeals judge before joining the court — a more legal perspective and less of a policy perspective.”
The homogeneity of the current Supreme Court is not limited to prior federal judicial service. The court is also heavily tilted toward the Ivy League, the East Coast and work in government and the academy rather than private practice. That narrow set of experiences, shared by Ms. Kagan and some of the other candidates, may tend to limit the justices’ collective outlook and cut them off from the real-world concerns of ordinary people.
But it is possible to achieve that same isolation without being a judge.
Ms. Kagan’s 1999 nomination to the United States Court of Appeals for the District of Columbia Circuit by President Bill Clinton never received a confirmation hearing in the Senate, which was controlled by Republicans. Such stalled nominations are not unusual. Democrats blocked the nomination of Miguel Estrada, a prominent conservative, to the District of Columbia Circuit in 2003. And the Senate never voted on President George Bush’s nomination of Chief Justice Roberts, then a Washington lawyer, to that court in 1992, when he was 37.
William Treanor, the dean of Fordham Law School, said the fact that Ms. Kagan was nominated to a federal appeals court when she was just 39 spoke volumes about her promise as a judge. “It indicated,” he said, “that she was considered to be incredibly smart, creative, hardworking and just a very good lawyer.”
After Ms. Kagan’s nomination to the District of Columbia Circuit failed, President George W. Bush in 2003 appointed Mr. Roberts to the seat she would have occupied.
Two years and 49 opinions later, President Bush elevated Judge Roberts to the Supreme Court. He was, as Ms. Kagan is today, 50 years old.
Except for Chief Justice Roberts’s judicial experience, he and Ms. Kagan have had strikingly similar careers. Both attended Harvard Law School, served on the law review there, worked as law clerks for prominent appeals court judges and Supreme Court justices, were lawyers in the White House counsel’s office and in leading Washington law firms, and argued important cases in the Supreme Court.
The open question, then, is whether even a relatively brief spell on an appeals court adds an important dimension to a candidate’s experience.
At her confirmation hearing for solicitor general last year, Ms. Kagan was questioned about what some senators suggested were her thin credentials even for the job of representing the federal government in the Supreme Court.
“As a physician, I don’t send patients to the professors at the university unless they’re the expert in the field who have actually practiced rather than just talked,” Senator Tom Coburn, Republican of Oklahoma, told Ms. Kagan, who at that point had never argued in any appeals court.
“I wonder how you respond to the criticism of this wonderful résumé you have but yet you have never been a justice, and you have never actually been a litigant?” Mr. Coburn asked.
Ms. Kagan said she would bring to the job a lifetime of legal study and strong analytic skills. She added: “I think I bring up some of the communications skills that has made me, I’m just going to say, a famously excellent teacher.”
In 2001, in her remarks at the Harvard banquet, Ms. Kagan gently mocked some of Judge Garland’s judicial opinions. One, she said, was an “eight-page analysis of the definition of the word ‘meeting’ ” as used in a federal law. The upshot of the opinion, she said, was that the challenged interpretation of the word “is permissible because the Supreme Court already said it was.”
Ms. Kagan said she took some comfort from that decision and others like it.
“Sometimes people ask me: Do you feel bad that your nomination was left hanging up there, that you never had a chance to be a D.C. Circuit judge?” she said.
“And, you know, if truth be told, sometimes I do,” she went on. “But I’ve come up with a really good way of making those feelings go away. What I do is pick up another D.C. Circuit opinion.”