On Monday, President Obama announced Elena Kagan as his nominee to the US Supreme Court to fill the spot soon to be vacated by Justice John Paul Stevens. Stevens, the fourth longest serving Justice in the Supreme Court, has served during the terms of seven presidents (Gerald Ford, Jimmy Carter, Ronald Reagan, George H. W. Bush, Bill Clinton, George W. Bush, and Barack Obama – since I figured you were wondering). Stevens, who was nominated by President Ford, was confirmed unanimously.
President Obama said, in part, about Stevens’ potential replacement:
Elena is widely regarded as one of the nation’s foremost legal minds. She’s an acclaimed legal scholar with a rich understanding of constitutional law. She is a former White House aide with a lifelong commitment to public service and a firm grasp of the nexus and boundaries between our three branches of government. She is a trailblazing leader — the first woman to serve as Dean of Harvard Law School — and one of the most successful and beloved deans in its history. And she is a superb Solicitor General, our nation’s chief lawyer representing the American people’s interests before the Supreme Court, the first woman in that position as well. And she has won accolades from observers across the ideological spectrum for her well-reasoned arguments and commanding presence.
But Elena is respected and admired not just for her intellect and record of achievement, but also for her temperament — her openness to a broad array of viewpoints; her habit, to borrow a phrase from Justice Stevens, “of understanding before disagreeing”; her fair-mindedness and skill as a consensus-builder.
That’s a fancy way of saying that she’s well educated and respected but short on judicial experience. Is that going to be a problem? I’m not sure.
There’s actually no requirement in the Constitution that a Justice have prior experience as a judge before serving on the Supreme Court. The only real criteria is that the nomination must come from the President and be confirmed by the Senate. Once on the bench, a Justice may serve practically forever – or until they die (Rehnquist), retire (O’Connor), resign (Taft) or are impeached (hasn’t happened… yet).
As a result, just over a third of the 111 Supreme Court Justices who have served have come from non-judicial backgrounds, including three of the most famous (Felix Frankfurter, Louis Brandeis and Earl Warren).
Does that mean it’s a good thing? I dunno. Clearly, you can’t say that experience equals a great justice (Clarence Thomas, anyone?). But I think it helps. I am, however, reserving judgment until the hearing.
Of course, since this is a tax blog, I’m desperately searching for Kagan’s views on tax law and I can’t find them. This isn’t surprising since few taxes are actually litigated at the Supreme Court level, so nominees are rarely tax-law heavy. We did get a glimpse into Sotomayor’s tax views in the Rudkin matter though for the most part, she had not written extensively about tax. I’ll keep scouring, you keep reading.
For more information on the nominee and the nominating and hearing process, check out the brilliant SCOTUS blog.
“Clearly, you can’t say that experience equals a great justice (Clarence Thomas, anyone?) ”
Fascinating.