Supreme Court Nominee Kagan’s Inexperience Is Troubling

May 10, 2010
Maureen Martin

U.S. Solicitor General Elena Kagan was nominated by President Obama today to fill the seat on the U.S. Supreme Court to be vacated by the June 30 retirement of Justice John Paul Stevens.

Maureen Martin, an attorney and senior fellow for legal affairs for The Heartland Institute, notes relatively little is known about Kagan and her thoughts on issues likely to come before the Court. In your coverage of this ruling, you may quote Martin’s comment below or contact her directly for more information.
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Kagan is being characterized as a “brilliant” legal scholar, but there is scant evidence for this claim. She certainly was a smart law student, graduating summa cum laude from Harvard Law School. But her legal scholarship since then is scant and undistinguished.

It is also limited to two narrow topics—First Amendment law and administrative law, specifically presidential powers. Given the breadth of issues the Supreme Court considers—securities law, complicated constitutional law, environmental law, to name just a few—her narrow scholarly experience is troubling.

Kagan has never been a judge. Some view judicial experience as important to success in “judging” on the Supreme Court because it provides experience in the process of being a judge. In my view, however, the value of judicial experience in lower courts is not exposure to the judging process—the work of a Supreme Court justice is more akin to that of a law professor. Instead, the value of being a lower court judge lies in the exposure to a wide variety of legal topics. Kagan’s lack of such experience is additional evidence of overly narrow legal qualifications.

Last, there is the question of her political bent. Kagan’s senior thesis at Princeton in 1981 was titled To the Final Conflict: Socialism in New York City, 1900-1933 and charted the decline of socialism in that period. In it, she wrote, “The story is a sad but also a chastening one for those who, more than half a century after socialism's decline, still wish to change America.” Is she among them? The confirmation hearings should help clarify this.
 
Maureen Martin
Senior Fellow for Legal Affairs
The Heartland Institute
(920) 229-6670
mmartin@heartland.org