Berman & Asbel, LLP

Elena Kagan would hardly be first Justice without prior judicial experience

This morning, President Obama announced that his nominee to replace retiring Justice John Paul Stevens on the U.S. Supreme Court is Solicitor General Elena Kagan.  I will concede that I do not know much about Ms. Kagan's record so I am not commenting here about the particular individual choice.  However, what I do like is that this nominee, the first in many years, has no prior experience as a judge.  Currently all of the justices were judges in one court or another before joining the Supreme Court.  However, it was not always this way.  Republicans opposed to President Obama and his nominee will attack this nominee for having no prior judicial experience.  Such critics, however, should keep in mind who was the last Supreme Court Justice with no prior experience as a judge - none other than William Rehnquist who was appointed to the Supreme Court by President Nixon and then appointed as Chief Justice by President Reagan.  Rehnquist's prior experience included clerking for Justice Robert Jackson in the early 1950s, working in private practice in Phoenix for 16 years and 2 years as an Assistant Attorney General early in the Nixon Administration.

Other former Supreme Court Justices who were never judges before joining the Supreme Court were: Byron White (Deputy Attorney General in Kennedy Administration), Earl Warren (California Attorney General and Governor), William O. Douglas (SEC Chair in Roosevelt Administration), Felix Frankfurter (close adviser to FDR, assistant US Attorney under Henry Stimson in New York, and one of the advocates for Sacco and Vanzetti) and William Howard Taft (President of the United States).  As you see, some of the most well known and distinguished past members of the Court had no prior judicial experience.   Many argue that a long career as a judge can isolate someone and that there is value to having someone with extensive experience in other areas.  Whatever one might think of Elena Kagan as a nominee to the Court individually, her lack of prior experience as a judge is not a negative at all.

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