Wednesday, June 2, 2010

Supreme Court: Kagan Nomination--the "No Judicial Experience" Bugaboo

This is probably the easiest consideration to deal with, and to dismiss.

In fact, it is so clearly a non-issue for any serious student of the Supreme Court, that any Senator or critic of Elena Kagan who raises it as a concern is either ignorant of Supreme Court history or simply being a bit less-than-clever in using it as a proxy for something else. Maybe something less speakable.

Felix Frankfurter--the FDR confidant and then Court appointee, who might well have been the most influential man in American national policy at the time--might have been exaggerating. But just a bit. In his famous lecture addressing the subject, he made no bones about it: "One is entitled to say without qualification that the correlation between prior judicial experience and fitness for the Supreme Court is zero."

! And history seems to confirm his assessment.

Chief Justice William Rehnquist had no judicial experience when he was first appointed to the Court by President Nixon. Neither did Chief Justice Earl Warren when Eisenhower appointed him. (That's one of the leading conservatives in the Court's history, and one of its leading liberals. There's no partisan or ideological side to this issue.)

Among other Chief Justices, there's Harlan Fiske Stone (when first appointed to the Court by Coolidge), Charles Evan Hughes (when first appointed by Taft), and the universally acclaimed "Great" John Marshall (appointed by John Adams, his only experience being a "recorder" in a city court in Richmond, Virginia for a couple of years early in his legal career).

Indeed, about 40% of all Justices had no prior judicial experience. More pointedly, among the truly great Justices in the Court's history, most had no or virtually no prior judicial experience.

There is considerable consensus about who the "great" Justices were. And of the dozen or so widely considered to be the greatest in Court history--in repeated studies, rankings and polls of Court scholars (law, political science and history)--virtually all of them were judicial-experience-challenged. Let's take a quick survey.

John Marshall, as just mentioned, had no prior judicial experience--unless one wishes to consider his 2 or 3 years as a "recorder" [apparently, similar to today's court reporters] in a local city court. He was the Secretary of State when appointed by Adams.

Joseph Story, with no judicial experience, had served in Congress and the Massachusetts state legislature when tapped by James Madison.

Roger Taney, with no judicial experience, had served in various state and federal positions including U.S. Attorney General when he was appointed by Andrew Jackson.

"Yes, but," you might be saying. That was early in our history. Things were different.

To be sure. But let's continue with that widely considered list of "greatest" Justices. The list now moves beyond the early years of the Republic.

Louis Brandeis, with no judicial experience, was a renowned (to some, infamous) public interest lawyer when appointed by Woodrow Wilson. (Also relevant here, Brandeis was the 1st Jew appointed to the Court, to the not-so-concealed dismay of many. This included Wilson's previous appointee, Justice McReynolds, who refused to speak to Brandeis for several years or to join the Justices on numerous occasions lest he be forced to mingle with a Jew.)

Harlan Fiske Stone, with no judicial experience, was a former dean of Columbia Law School and the U.S. Attorney General when appointed by Calvin Coolidge. FDR later elevated Stone to Chief Justice.

Charles Evan Hughes, with no judicial experience, was the Governor of New York when appointed by William Howard Taft. He was later appointed Chief Justice by Herbert Hoover.

Hugo Black, with one year on a Birmingham police court (like a town justice court), was a U.S. Senator when appointed by FDR.

Robert Jackson, with no judicial experience, had served as U.S. Solicitor General and then Attorney General under FDR when the latter appointed him to the Court.

Felix Frankfurter, with no judicial experience, was a Harvard law professor and, as earlier mentioned, a confidant of FDR when the latter appointed him to the Court.

Earl Warren, with no judicial experience, was the Governor of California when appointed Chief Justice by Dwight Eisenhower.

Anyone familiar with Supreme Court history or with the names of great American jurists surely notices the absence of 2 names from my survey: Oliver Wendell Holmes and Benjamin Cardozo. Those 2 are on everyone's list of the greatest Justices and they DID have plenty of judicial experience.

But as Frankfurter insisted, they turned out to be great Justices, not because of prior judicial experience, but because they were "thinkers and, more particularly, legal philosophers." To which I might add on a related note, both of them gained their judicial experience on one of the country's fine state supreme courts and, in fact, the world's great common law courts. (For Holmes, it was the Massachusetts Supreme Judicial Court; for Cardozo, the New York Court of Appeals.)

The significance of this, and what ties Frankfurter's and my observations, is the nature of the work on these and other such state high courts. The judges on these courts--by the very nature of common law courts--necessarily, routinely, openly are in the business of making law. Their decisions, resolving disputes between the parties before them, establish precedents which then constitute the law of torts, contracts, property, civil and criminal procedure, standing, rules of statutory and constitutional interpretation, etc., etc.

Not surprisingly, in their capacities as legal philosophers and analysts of the judicial process, both Holmes and Cardozo took for granted that judges make law. (More about that in a subsequent post.) For the purposes of our discussion here, the importance of this is in the qualities that make a great judge or Justice. These are not the legalistic skills that one might gain from years on a lower bench. These are not about discovering or divining law that already exists in statutes, case law or constitutional provisions through questionable--and usually contradictory--methods of interpretation or legal analysis.

These are qualities of wisdom, of integrity, of fairness, humanity and decency, of foresight, political and social acumen, a sense of history, an ability to balance liberty and order, appreciation of these and other abiding values and principles that define what is best about our country, and other such characteristics.

The most critical issues that come before the Supreme Court--issues about the nation's "fundamental aspirations," as Judge Learned Hand put it--require those sort of qualities. And they are at least as likely to come from non-judicial experiences in life as they are from years on a lower court.

How much speech should be free? How free the press? What searches are "reasonable"? How much fairness should be required by "due process"? And what is included in the "liberty" that is to be protected by it? What is the nature and extent of the equality guaranteed by "equal protection of the laws"? What punishments are "cruel"? Etc., etc., etc.

These are not legalistic questions They do not succumb to legal analysis or interpretive methodology or other particularly legal skills. Let alone skills that are necessarily honed as a lower court judge rather than as some other public servant, or as a participant in or serious observer of our free society in some other capacity. These are fundamental questions that require a bit of the philosopher, historian, and prophet (again to borrow from Frankfurter).

Soooo, if some Senators beat the drums about judicial experience--or some variant thereof--there's very good reason to be skeptical. There's good reason to suspect some other underlying concern.

As for some other concerns likely to be expressed--e.g., making law instead of applying it, judicial activism, etc.--we'll take a look at them in forthcoming posts.

Meantime, for further reading on the issue of judicial experience, the very best discussions are contained in 2 of Henry J. Abraham's books: JUSTICES, PRESIDENTS, AND SENATORS (earlier editions were entitled JUSTICES AND PRESIDENTS), in the chapter, "Why They Get There;" and THE JUDICIAL PROCESS, in the chapter, "Staffing the Courts." Any of the several editions of each these books will do. In fact, these books are veritable Bibles--and very readable ones--on the Supreme Court.
For a quick profile of Professor (now Emeritus) Abraham, see