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Senators offer opposing views on Kagan's experience as confirmation hearings begin

By Sarah Miley

[JURIST] The US Senate Judiciary Committee [official website] began confirmation hearings [materials; video] Monday for Supreme Court [official website] nominee Elena Kagan [JURIST news archive], with Democratic and Republican senators offering contrasting interpretations of Kagan's judicial philosophy and lack of experience on the bench. In his opening statement Senator Ted Kaufman (D-DE) [official website], who replaced Vice President Joe Biden [official profile] after the 2008 presidential election, welcomed Kagan's lack of judicial experience, stating that her experience with all three branches of government would help to diversify the bench and bring a fresh perspective to a court that is composed of all former judges. Addressing Kagan and the committee, Kaufman stated [transcript]:

I was noting the fact that the current Justices all share very similar professional backgrounds. Every one of them served as a federal circuit court judge before being appointed to the Supreme Court. Not one of them has ever run for political office, like Sandra Day O'Connor or Earl Warren or Hugo Black.

Some pundits, and some Senators, have suggested that your lack of judicial experience is somehow a liability. I could not disagree more. While prior judicial experience can be valuable, the Court should have a broader range of perspectives than can be gleaned from the appellate bench.

Kagan's lack of experience was not similarly embraced by Ranking Member Jeff Sessions (R-AL) [official website] who applauded her work as outside the courtroom, but held that there is no replacement for first-hand judicial experience:

Ms. Kagan certainly has numerous talents and many good qualities, but there are serious concerns about this nomination. Ms. Kagan has less real legal experience of any nominee in at least 50 years. And it's not just that the nominee has not been a judge. She has barely practiced law and not with the intensity and duration from which I think real legal understanding occurs.

Ms. Kagan has never tried a case before a jury. She argued her first appellate case just nine months ago. While academia certainly has value, there is no substitute, I think, for being in the harness of the law, handling real cases over a period of years.

Kagan concluded Monday's hearing by pledging to consider every case impartially, modestly, with commitment to principle and in accordance with law. The Senate's confirmation vote is expected to take place by the end of July and puts the Senate on track to meet President Barack Obama's goal of confirming Kagan by the time the court begins its new session in the fall.

Earlier this month, a letter [text, PDF] was released by a group of 69 current and former law school deans [JURIST report], describing her as "superbly qualified." The letter, addressed to Senate Judiciary Committee chair Patrick Leahy (D-VT) and Sessions, was authored by Stanford Law School [academic website] Dean Larry Kramer [professional profile] and represented the views of deans from a diverse group of schools in a variety of states. The group cited Kagan's academic accomplishments, including the qualities she exhibited as former dean of Harvard Law School [official website], to bolster their recommendation. Obama nominated Kagan [JURIST report] in May to replace Justice John Paul Stevens [official profile; JURIST news archive], who announced his retirement [JURIST report] in April. Kagan became the first woman confirmed as Solicitor General [JURIST report] in 2009.

Full post as published by JURIST - The Paper Chase on June 28, 2010 (boomark / email).