Bench Memos

Elena Kagan Is No John Roberts

Few lawyers can plausibly be compared to John Roberts, and I mean no disrespect to Solicitor General Elena Kagan (whose intellect I hold in high regard) to note that she is not among them.

An article in Saturday’s New York Times on Elena Kagan’s lack of judicial experience included this paragraph:

Except for Chief Justice Roberts’s judicial experience, he and Ms. Kagan have had strikingly similar careers. Both attended Harvard Law School, served on the law review there, worked as law clerks for prominent appeals court judges and Supreme Court justices, were lawyers in the White House counsel’s office and in leading Washington law firms, and argued important cases in the Supreme Court.

The passage strains to obscure another fundamental difference between the careers of Roberts and Kagan. 

Roberts practiced law for some 22 years, both in private practice and in government.  In the course of arguing 39 cases in the Supreme Court and many more in the federal courts of appeals, he earned a reputation as quite possibly the best appellate advocate in the country. 

Kagan, by contrast, has been a legal academic for almost the entirety of her career.  Before she became Solicitor General just a year ago, she had never argued any case anywhere.  Her real-world experience in legal practice had consisted of roughly two years as a junior associate two decades ago (1989-1991), a summer as special counsel to the Senate Judiciary Committee, and a short stint in the White House counsel’s office (1995-1996).

In other words, in addition to his two years on the D.C. Circuit, Roberts’s legal career provided far more evidence than Kagan’s that he satisfied Kagan’s “threshold” test of having “evidence[d] an ability … to master the ‘craft’ aspects of being a judge.”