Judicial experience a fairly new expectation for Supreme Court

McClatchy NewspapersMay 11, 2010 

WASHINGTON — Republicans are attacking Supreme Court nominee Elena Kagan for her lack of judicial experience, but they haven't always been so particular.

Forty Supreme Court justices have come to the court without any prior judicial experience, half of them serving during the 20th century. They've included some of the court's most distinguished alumni, as well as some political hacks.

Until now, though, senators haven't used judicial inexperience as a reason to oppose a president's nominee.

"It's a relatively new notion," said Russell Wheeler, a visiting fellow at the Brookings Institution, adding that "there has developed in this country the notion that the only recruitment pool for the Supreme Court is sitting judges, even though historically that's not been the case."

When Kagan was born in 1960, five of the Supreme Court's nine justices had no previous judicial service. All nine current justices were appointed from other court positions. The terms of confirmation battle have changed, as well.

In 1971, for instance, President Richard Nixon nominated Lewis Powell and William Rehnquist to fill two Supreme Court vacancies. Neither had ever served on the bench.

Congressional Republicans nonetheless embraced the nominees. Tellingly, they didn't feel a need to defend the lack of judicial experience. The issue simply didn't arise when Republican lawmakers spelled out their criteria for the court.

"Three considerations face this committee," Sen. John McClellan of Arkansas, the second most senior Democrat on the Judiciary Committee, said at a 1971 hearing. "Do these nominees have personal integrity? Do they possess professional competency? Do they have an abiding fidelity to the Constitution?"

McClellan's definition of competency had nothing to do with prior judicial service. Even Democrats ignored the candidates' judicial inexperience.

During the four-day Senate debate over Rehnquist in December 1971, which spanned some 200 pages in the Congressional Record, the phrase "judicial experience" appeared only once, in a different context. When skeptical Democrats such as Sen. Edward Kennedy of Massachusetts pressed Rehnquist, they didn't ask him about judicial experience.

By contrast, the judicial experience theme has quickly become what Wheeler of the Brookings Institution characterized as the Republicans' "line of attack" on Kagan's nomination. For politicians who need a fight, some weapon must be found.

"Ms. Kagan's lack of judicial experience ... is troubling," declared Sen. Jeff Sessions of Alabama, the senior Republican member of the Senate Judiciary Committee.

Sessions' colleague, Republican Sen. John Cornyn of Texas, added that Kagan is "a surprising choice because she lacks judicial experience." Conservative analyst Ed Whelan of the Ethics and Public Policy Center denounced Kagan as having "less relevant experience than any Supreme Court nominee in over 50 years."

Whelan subsequently conceded that he wasn't counting Harriet Miers, President George W. Bush's White House counsel, who quickly withdrew her 2005 nomination under Capitol Hill skepticism. Even Miers, though, had her defenders at the time, including Cornyn.

"I thought she would fill some very important gaps in the Supreme Court," Cornyn said at a news conference on Oct. 27, 2005. "Because right now you have people who've been federal judges, circuit judges, most of their lives, or academicians."

President Franklin Delano Roosevelt nominated two Supreme Court justices whose backgrounds appear similar to Kagan's. Stanley Reed, who never graduated from law school, was promoted directly from the Solicitor General's Office in 1938. Felix Frankfurter joined the court in 1939 from the Harvard Law School faculty.

Kagan is currently the solicitor general, on leave from Harvard Law School.

Judicial inexperience wasn't raised as an issue for either Reed or Frankfurter, Senate records show. Both men raced to confirmation within days of being nominated, with essentially no debate.

A generation later, in 1965, President Lyndon Johnson nominated his longtime ally Abe Fortas, even though Fortas had never served on the bench.

Fortas drew criticism as Johnson's favorite political fixer — "Mr. Abe Fortas in recent years has developed a national reputation as the man to see in Washington to get things done," said Sen. John Williams, R-Del. — but the critics didn't fault Fortas for lacking judicial experience. They went after him on other grounds, which they evidently thought more relevant.

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