The Kagan Experience

Yesterday President Obama nominated Elena Kagan to replace Justice Stevens on the highest court in our Country, the Supreme Court. As usual, there will be moans and groans as the Congress proceeds through the affirmation process. These moans and groans began even before she was officially nominated (see New York Times article: http://www.nytimes.com/2010/05/10/us/politics/10court.html?scp=2&sq=Elena%20Kagan&st=cse). The biggest moan is that she is the first justice nominated in over 40 years without any judiciary experience.

The above article does point out there have been many justices that have been selected who did not have any judiciary experience. What's humorous is the article pointed to "even a former president." When I was watching the news this morning and heard a Republican senator moaning about her lack of experience, I decided to look up the only President of the United States to also serve as Chief Justice of the Supreme Court, William H. Taft. At first glance, President Taft's bio timeline does elude to the misconception he had zero judiciary experience. However, after digging a little deeper another story unfolds.

One point which elicits a smile on my face is the fact that President Taft served as solicitor general of the United States - the same role Ms. Kagan currently fulfills - from 1890 to 1892. A shared trait between a former Chief Justice and the current appointee to associate justice. After reading a little more one learns the truth, President Taft served as a judge of the Superior Court at Cincinnati from 1887 to 1890 and as a federal circuit court judge from 1892 until 1900 when President McKinley asked him to serve on the United States Philippine Commission from which he served as the first civil governor of the Philippine Islands. Even the big 'ole New York Times allows misconceptions to enter their writings!

A justice that also did not have any judiciary experience when he was appointed was Charles E. Hughes. I picked him due to an interesting fact, but I'll get to that fact later. First, Chief Justice Hughes practiced and taught law after graduating from Columbia Law School. His rise to fame came when he defeated William Randolph Hearst for governor of New York. He served four years before accepting an appointment as an associate justice of the Supreme Court. So Chief Justice Hughes never served in a judiciary capacity before becoming an associate justice. He didn't even come close to Ms. Kagan's resume. She at least argues cases before the Supreme Court.

Now the interesting fact. Chief Justice Hughes resigned his justice position after receiving the nod from the Republican party for nomination for President. He lost to Woodrow Wilson in a very close election. After several other positions including secretary of state, President Hoover, in 1930, nominated him as Chief Justice of the Supreme Court. This makes Chief Justice Hughes as the only individual to leave the high court to only return at a later date (hopefully, I devoted enough research to this fact that it remains fact!).

Do those nominated to the Supreme Court require judiciary experience? Our history provides the answer to this question and the answer is an emphatic NO. Those who sit on the high court should be schooled in law, the application of the law, and the interpretation of said law. They should be knowledgeable of the Constitution, its meaning, and its origin. Other than that, there shouldn't be any other requirements.

Too often those in government look to ideology to determine nominees to the Supreme Court. The only time this should be looked at is to ensure a balance exists on the Court. We've seen too often that a singular power will exert their will when there isn't enough balance to counter the will of that majority power. A balance should always exist to limit the effects of personal and political beliefs. The ideal situation is where the interpretation of the law and the Constitution is accomplished without influence of one's own personal and political beliefs. The ideal situation can never occur because, as humans, our beliefs will guide our thoughts and actions, even in the face of logic and common sense.

Is Elena Kagan a good nominee? That is a question for each of us to answer ourselves. She is definitely well educated in the law, even serving as Harvard Law School's first woman dean. She is a liberal replacing a liberal. Hopefully, she'll be closer to the ideal than closer the extreme. One day in the future, we will know what the Kagan Experience is all about.

Mike

Reference:
Downey, D. (Ed.). (1987). New Standard Encyclopedia. Chicago: Standard Educational Corporation.