Bench Memos

The Kagan Standard on Supreme Court Nominees

Mea culpa.

From her law-review article on the Supreme Court confirmation process—“Confirmation Messes, Old and New,” 62 U. Chi. L. Rev. 919 (1995)—it’s also worth noting that Elena Kagan would seem to flunk the “threshold” test that she set forth for Supreme Court nominees.  In particular, she seemed to put a much higher premium on the value—indeed, the apparent necessity—of previous judicial experience than those who now promote her candidacy:

It is an embarrassment that the President and Senate do not always insist, as a threshold requirement, that a nominee’s previous accomplishments evidence an ability not merely to handle but to master the “craft” aspects of being a judge.  In this respect President Clinton’s appointments stand as models.  No one can say of his nominees, as no one ought to be able to say of any, that they lack the training, skills, and aptitude to do the work of a judge at the highest level.  [p. 932 (emphasis added)]

I don’t doubt Kagan’s “skills” and “aptitude,” but I see nothing in her record that indicates that she has “master[ed] the ‘craft’ aspects of being a judge.”

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