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Monday, June 7, 2010

Scalia on Kagan: You got it half right, Your Honor.

Kirsten E. Small

This item is getting a bit long in the tooth, but I think it's still worth comment. On May 26, Justice Scalia spoke at an event in D.C. and commented that he is "pleased" that Elena Kagan is not a member of the judiciary; he basically praised President Obama for taking a chance on a non-judge nominee.

I'm with Scalia to a point. It matters not one whit to me that Ms. Kagan has never been a judge. She's been a law clerk (Judge Mikva, Justice Marshall), an academic (Chicago, Harvard), a policy wonk (Clinton administration), an administrator (Dean of Harvard Law), and the nations chief appellate lawyer (Solicitor General). All of these things make her thoroughly qualified for the essential work of a Supreme Court justice: research, analysis (of law and policy), debate and defense of positions, and coalition building.

I think Justice Scalia got it wrong, however, when he favorably compared Ms. Kagan's route to nomination to the civil law system in Europe, where "[p]eople who have never been in private practice ... [or] been on the other side of a case are judges." Private practice--particularly litigation--is precisely the experience Ms. Kagan--and every other justice except Justice Sotomayor--lacks.

What bothers me about Ms. Kagan's nomination is that she has never been "on the other side of the case." There isn't much information on her brief stint in private practice, but at the very least, it appears she spent little or no time inside a courtroom. Certainly she never tried a case.

The Supreme Court deals with a lot of big, important questions, but it also deals with the nitty-gritty of litigation--witness yesterday's decision in Krupski v. Costa Crociere, construing Rule 15(c). Theory will only get you so far in these cases; equally necessary is a familiarity with the actual, in-the-trenches practice of law. Currently, the only justice who has such experience is Justice Sotomayor.

As litigation becomes more and more complex, it becomes more important that appellate judges, and the Supreme Court in particular, are able to understand the practical consequences of their decisions for lawyers, their clients, and trial court judges. The current, all-but-mandatory path to a Supreme Court seat eschews litigation experience in favor of academic credentials, creating a Court so high up in the ivory tower that the realities of the practice of law seem tiny and insignificant.

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