There are many reasons to be for or against President Obama’s nomination of Solicitor General Elena Kagan to become the next associate justice on the Supreme Court. But lack of prior judicial experience shouldn’t be one of them.
Consider this from the annals of terrible headlines. As the Dayton Daily News reports: “Supreme Court nominee could be first justice without judicial experience.” The article helpfully adds in the second graf,
“If the Senate confirms her to replace the retiring Justice John Paul Stevens, Kagan will become the first justice without any judicial experience to join the court since 1971, when President Richard M. Nixon nominated Lewis Powell and William Rehnquist.”
Uh, Rehnquist … Rehnquist. I’ve heard that name before. Oh yes, THAT William Rehnquist, who served on the high court until 2005, the last ten years of which he was Chief Justice of the United States. So, could he in 1971 (and Lewis Powell), have really been the first “justice(s) without judicial experience”?
No, wait …. there were others: Abe Fortas, Byron White … still more …. Earl Warren, Tom Clark. EARL WARREN?!? Yes, friends, Earl Warren of “The Warren Court” appointed by Pres. Eisenhower in 1953 and served until 1969. He was formerly the governor of California.
And still more justices of the Supreme Court, prior to their ascension to the high bench, had never sat in a judges chair: William Douglas; Harlan Fiske Stone; Louis Brandeis; John Marshall; and John Jay. Around 40 of over 100 justices in our history never wore judges robes before becoming one of the top nine.
I’d say by those standards, Kagan would be in very good company.
— by Fred Dews, 2010
Public Historian 