Bench Memos

NRO’s home for judicial news and analysis.

Senator Hatch on Kagan Nomination


I haven’t had time to call attention to all the excellent statements by various Republican senators on the Kagan nomination, but let me highlight this fine floor speech today by Senator Orrin Hatch (my former boss).  Some excerpts:

Let me first look at Ms. Kagan’s legal experience.  I have never believed that judicial experience is necessary for Supreme Court service.  In fact, 39 Supreme Court Justices, about one-third, had no previous judicial experience.  What they did have, however, was extensive experience in the actual practice of law, an average of more than 20 years.…  In other words, Supreme Court Justices have had experience behind the bench as a judge, before the bench as a lawyer, or both.

Ms. Kagan has neither.   She spent only two years as a new associate in a large law firm.  She never litigated a case or argued before any appellate court before becoming Solicitor General last year.  And her work in the Clinton administration was focused on policy and legislation.… 

Last week, one of my Democratic colleagues …. identified Justices Byron White, William Rehnquist, Louis Brandeis, and Lewis Powell as among those with no prior judicial experience.  These Justices had practiced, respectively, for 14, 16, 37, and 39 years and Justice Powell had also been President of the American Bar Association.  There really is no comparison. 

[After discussing evidence of Kagan’s judicial philosophy:]  These and other examples, over a period of more than two decades, fit consistently together.  They indicate that for most of her career, Ms. Kagan has endorsed, and has praised others who endorse, an activist judicial philosophy.  She appears to have accepted that judges may base their decisions on their own sense of fairness or justice, their own values of what is good and right, their own vision of the way society ought to be. 

[On Solomon Amendment:]  She did everything she could, including defying federal law and making legal arguments that even Justice Stevens could not accept, to pursue her political objective.


Subscribe to National Review