Chief Justice John Marshall: Not Enough "Experience"?

The one thing supporters and opponents of Elena Kagan’s nomination to the Supreme Court should agree on is this: it’s about time we had some non-judges on the high court…again.

The history of the Supreme Court is one filled with brilliant (and some not-so-brilliant) members who had never been judges before being confirmed. That was once considered not only normal, but a good thing. The non-judges have been some of the most remarkable names in the Court’s long history: Marshall, Brandeis, Frankfurter, Rehnquist, Warren. Thirty-seven other justices were part of the “not-a-judge” club. They brought a different view from that forged by a career in robes and, whether you agreed with their reasoning on individual cases, you could not argue that their perspectives were valuable.

Some, like Alabama Senator Hugo Black, President William Taft, and California Governor Earl Warren brought the political experience of elected office. Their frame of reference was not a narrowly legalistic one but rather one that incorporated the give-and-take of the public will. Others, like Attorney General Harlan Stone, corporate attorney Lewis Powell, and NAACP chief counsel Thurgood Marshall saw the law in ways that were deeply informed by their varied careers.

This was once considered a benefit — the idea that the nine (men) would deliberate and debate using the experiences they brought to the Court was thought to be the essence of the uniquely powerful and independent American judiciairy. Oliver Wendell Holmes wrote:

The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become.

Currently all nine members of the Court were not only circuit court judges but appellate court judges as well. They’re all steeped in the Federal judiciary, for better or worse. Amidst the predictable arguments from Kagan’s opponents — she’s a nutty liberal anti-military lesbian — her lack of judicial experience seems a pretty dumb thing to pick on. That didn’t stop the president of the conservative Ethics and Public Policy Center Ed Whelan from going in whole hog:

Kagan may well have less experience relevant to the work of being a justice than any justice in the last five decades or more. In addition to zero judicial experience, she has only a few years of real-world legal experience. Further, notwithstanding all her years in academia, she has only a scant record of legal scholarship.

All of which is true…of Kagan and the late William Rehnquist. Rehnquist — arguably the first justice to vigorously push a newly-developoing hard-right legal philosophy into the Supreme Court’s deliberations — was a darling of conservatives. But his resume was as “thin” as Kagan’s and arguably more troubling if “real-world” experience is what you’re after.

Out of Stanford Law in 1952 Rehnquist clerked for Supreme Court Justice Robert Jackson. It was there he wrote a controversial brief arguing that Plessy v Ferguson was “right and should be affirmed.” You may recall from 8th grade history that Plessy was the 1896 ruling in which the Court declared that racial segregation was perfectly constitutional under the theory that “separate but equal” accommodations were enough to satisfy the law. And that was pretty much that in terms of Rehnquist’s judicial legal experience.

He moved to Phoenix and was a private practice attorney who worked with the state’s Republican Party including Presidential candidate Barry Goldwater. When Richard Nixon was elected he brought Rehnquist to Washington and installed him in the Attorney General’s office as essentially the AG’s legal counsel. Two years later Nixon placed him on the Court. While 26 Senators voted against him — including two Republicans — no one said he didn’t have enough judicial or legal experience.

The truth is Supreme Court nominations are now primarily political battles. Certainly Nixon faced something similar when his first two picks for the Court were rejected by the Senate but his next choice — Lewis Powell — was confirmed 89-1. That kind of vote wasn’t so rare all the way into the early 90s. As incredible as it seems now, uber-conservative Antonin Scalia was confirmed 98-0. Not one Democrat voted against the most provocatively conservative nominee in a generation. (OK Robert Bork was probably more provocative but still, 98-0???).

And so it should surprise no one that conservatives are bust trying to define the nominee just as they tried to do with Sonia Sotomayor and liberals did with Bork. The game is well known and it is on. The right is gonna have to do better than “she’s not been a judge” though. I’m betting they run with the gay thing. Let’s see how that works for them….