Kagan Can Be a Justice, Though Never a Judge?

May 10th, 2010

By Dan Miller

President Obama has selected Elena Kagan, the solicitor general of the United States, as his nominee to replace the retiring Justice John Paul Stevens. From her official bio:

Kagan came to Harvard Law School as a visiting professor in 1999 and became Professor of Law in 2001. While on the faculty, Kagan taught administrative law, constitutional law, civil procedure, and seminars on issues involving the separation of powers. She was appointed Dean of the Law School in 2003.

Aside from employment as an associate in a law firm, her functions before becoming the solicitor general were primarily academic, and later administrative. The closest she ever came to getting judicial experience came when she served as a law clerk to Judge Abner Mikva of the Court of Appeals for the D.C. Circuit from 1986 to 1987, and as a law clerk to Justice Thurgood Marshall of the Supreme Court the next year. Though it is not the function of a law clerk working for a judge or justice to reflect one’s own ideological views, but to channel those of the employer — like an attorney representing a client:

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9 Responses to “Kagan Can Be a Justice, Though Never a Judge?”



  1. Tom |

    This is an excellent, detailed article, Dan. As I noted earlier, I’m not much concerned about her lack of experience as a judge. In fact, I think that could be an advantage in some respects. Sometimes, looking at what the Court does, I wonder if we wouldn’t be better off having at least one justice who’s never been a judge or even a lawyer. Just some guy, maybe an auto mechanic or an assembly line worker who has read the Constitution and takes it seriously. Just joking…mostly.

    The more I read about Kagan, the more I think she may surprise some folks by being less liberal than expected. Wouldn’t be the first time a justice has been different from what was anticipated.

    What I hope doesn’t happen during Kagan’s confirmation hearings are attacks on her personal life. There’s no justification for that. But given the way the Senate works these days, it wouldn’t be surprising.


  2. Brianna |

    “Just some guy, maybe an auto mechanic or an assembly line worker who has read the Constitution and takes it seriously.”

    If only we could get a few Congressmen like that, the country’d be a better place :-)


  3. Tom |

    There’s a pretty good article in the Wall Street Journal that rebuts the charge that Kagan is anti-military based on issues associated with ROTC recruiting when she was Dean of Harvard Law School.


  4. d |

    Believe me,and I know this from real experience,Brianna,an auto mechanic will never,and I mean never,read the constitution. It is way too boring and not about tools or cars:)
    I hope she is liberal,and saves womens rights,and gets the nomination,or at least survives the attacks.


  5. Brianna |

    OK, don’t want Kagan on the court. Her opinion on free speech is horrible

    http://www.examiner.com/x-37620-Conservative-Examiner~y2010m5d12-Kagan-wrote-that-government-can-restrict-free-speech


  6. d |

    I agree with you completely now,Brianna,as long as she really said what they say she did. She cannot be on the supreme court,thinking like that,geeze,we will all have to miss May 20, draw Mohammed day. But,seriously,she is dangeruos, with that attitude. I agree with you,but don’t get used to it.


  7. Brianna |

    “Believe me,and I know this from real experience,Brianna,an auto mechanic will never,and I mean never,read the constitution.”

    Clearly, we don’t run in the same circles.


  8. d |

    Yeah,my husband and my son are mechanics:)I run around in circles,not in them.


  9. Plitt |

    Decent…….? She has the natural born gift of being honest and a good habit of scarely getting to the point at hand. No beating around the bush. She’s got gusto and there’s no decent. Only a outspoken truthful woman that’s on a “accent” to the might reach the status of a first lady we all respected and….respected.


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