CRF Blog

Should a Supreme Court Nominee Have Judicial Experience?

The current members of the U.S. Supreme Court. Retiring Justice John Paul Stevens is seated second from the left.

By Damon Huss

Once President Obama nominated Elena Kagan to replace Justice John Paul Stevens on the Supreme Court, a debate flared up about Kagan’s judicial experience. More precisely, her lack of judicial experience. Kagan is currently the U.S. solicitor general, which means she represents the U.S. government in cases before the Supreme Court. She has argued six cases since her appointment last year.

Unlike every other justice currently on the Supreme Court, however, Kagan has never been a judge before being nominated. Her career has been primarily academic: She was a professor at the University of Chicago Law School and, from 2003 to 2009, the dean of Harvard Law School. She also held positions in the Clinton White House. Critics, such as Senator Jeff Sessions (R-AL) and Representative John Boehner (R-OH), contend that this makes her a “troubling” choice.

Have there been other justices with no judicial experience? Yes. In fact, 40 of the 111 nominees to the Supreme Court in U.S. history were not judges prior to their nomination. These include Louis Brandeis, Robert H. Jackson, and Abe Fortas as well as several chief justices, including John Marshall, Earl Warren, and William H. Rehnquist.

That, however, has not been the trend of the last 40 years. Chief Justice Rehnquist was the last justice before Kagan to be nominated who had not previously been a judge. He was appointed by President Nixon in 1972. According to a recent Washington Post/ABC poll, 52 percent of Americans are strongly in favor of Supreme Court justices having prior judicial experience. By contrast, only 20 percent are strongly in favor of justices having experience outside the legal profession.

Comments (1)

Ben BuchwalterMay 19th, 2010 at 2:37 pm

I don’t think it’s essential to be a judge before being nominated to the SCOTUS. The examples you list — Brandeis, Marshall, Warren, Rehnquist — certainly aren’t examples of failures on the bench. It seems that the general consensus online has been that we should strive for diversity in experience on the Supreme Court, and I think that’s mostly right. That said, it would be nice to start seeing justices who didn’t graduate from Harvard or Yale. Still, I think that Kagen’s nomination is a step in the right direction.

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