Many Have Come to the Court Without Black Robes

(May 10) -- Solicitor General Elena Kagan would buck a nearly 40-year trend if she is confirmed to the Supreme Court without any experience serving on the bench.

But historians say a third of the nation's justices -- and some of the very best ones -- also showed up without a black robe in their backgrounds. The last justice named without having sat on the bench was William Rehnquist, who joined the court 1972 and later became chief justice. Six other chief justices, including John Marshall, had no previous judicial experience.

The eight colleagues Kagan would join at the top all were appeals court judges. Kagan's lack of bench experience could be an issue at her confirmation hearings.
"Her experience as a judge doesn't matter. Her experience as a lawyer does," said James B. O'Hara, a retired professor at Loyola University Maryland and a trustee of the Supreme Court Historical Society.

Kagan is solicitor general, the Justice Department official who represents the Obama administration in arguing before the court. She also served as dean of Harvard Law School and as a political adviser in the Clinton White House.

M. Edward Whelan III, president of the Ethics and Public Policy Center, disagrees that her judicial experience doesn't matter. He described her as having the least relevant experience of anyone in nearly five decades.

"Judicial experience is the best training ground for being a justice," Whelan said. "Some justices can overcome that lack of experience, but it's bizarre to treat that defect as a virtue."

But O'Hara said historians are applauding the selection of a nonjudge because it provides the court with a different viewpoint. Judges don't always have experience with how laws are administrated in the real world. And, he said, they see things more in black and white -- plaintiff versus defendant -- than the nuances in the middle.

Kagan gets high marks for working with conservatives and liberals alike in her tenure at Harvard and would join a court that is sharply divided. She is expected to side more with the three more liberal justices.

Justices hew to the ideology that the president who appoints them expects about 80 percent of the time, according to Barbara Perry, professor of government at Sweet Briar College in Virginia, who studies top court history and politics.

Republican President Dwight Eisenhower learned the hard way that it doesn't happen all the time. He nominated career politician Earl Warren, who went on to lead a liberal court. Perry said the recent fashion of appointing judges is partly a reaction to that experience.

Although Rehnquist also came without experience as a judge, President Richard Nixon had a good reading on his nominee's ideology because he had worked in the Justice Department.

Appointing judges has become the norm partly because it's an easy way to prove a nominee's professional qualifications, said Michael Dorf, law professor at Cornell Law School. The top court nomination process has become more of an ideological battleground, so the experience gives all sides a written record of opinions to draw from. With President Barack Obama's first nominee, Sonia Sotomayor, conservatives were unable to paint her as a radical because she had a written record of decisions, Dorf said.

Kagan was nominated for a court job by Clinton but never confirmed by the Senate. Dorf said it's "silly" to think she would have been a very different nominee if she had served a short time on the federal bench.

Both President Bill Clinton and President George W. Bush wanted to name nonjudges. But Bush's nomination of Harriet Miers was buried alive by complaints about her level of experience. And nonjudge nominees that Clinton considered, such as New York Gov. Mario Cuomo, did not pan out, Dorf said.

Further back in American history, many justices came with different experience. Marshall -- considered by many historians to be the best justice of all time -- was not a judge. In 1801 when he joined the court, it was common for nominees to be politicians. Marshall had been secretary of state.

Many other Supreme Court justices came from Cabinet or political positions. Several rated among the top 12 justices in history in a poll of scholars conducted by Roy M. Mersky and William Bader had no previous judicial experience. Marshall and Warren are on that list, along with Louis Brandeis, Harlan Fiske Stone and Felix Frankfurter.

Franklin D. Roosevelt turned to politicians as he tried to pack the court and get his New Deal programs approved. "He was looking for loyalists and partisans, quite frankly," Perry said.

Kagan fits the mold of what many presidents have looked for, Perry said: Someone who can create coalitions. "They are looking for people who can marshal the court," Perry said.

O'Hara said, "Any senator arguing you have to be a great judge to be a great justice would have to be ignorant of history."

Will Kagan signal a shift back to appointing nonjudges? Perry doubts it. But during a year working for Rehnquist at the court as a judicial fellow, she spoke to dignitaries from across the globe, drawn to the world's pre-eminent court. The value of the Supreme Court is that presidents choose "ideological soul mates" who also have professional merit -- whether as judges or from other experience.

"That's why we've had such a great Supreme Court," Perry said.