MSU College of Law - Unknown Experience

Jun 23, 2010, 07:15 ET from MSU College of Law

EAST LANSING, Mich., June 23 /PRNewswire-USNewswire/ -- Elena Kagan's lack of judicial experience does not make her unqualified for the Supreme Court as much as it makes her an unknown quantity there.

Before 2005, there had always been at least one member on the Court—and usually more than one—who came to it with no judicial experience. The country managed to survive. Besides, once someone is on the Court, he or she immediately starts getting experience anyway.

When lower-court judges are nominated to the Supreme Court, though, we can examine their previous judicial output and get some sense of what kind of judges they are. Do they stick to the plain text of statutes, or do they try to figure out what the legislators' intent was? How do they treat precedent? Do they stay true to a set of neutral judicial principles, or do they use whatever tools they can to help their favored causes?

Vapidity of the Senate confirmation process notwithstanding, we can examine what Kagan's favored causes are. We can assess the keenness of her legal mind, the strength of her character, and her work ethic. But none of that tells us a thing about what sort of judge she will be. Indeed, never having wielded Supreme Court power before, she has no way of knowing herself.

To be sure, the same is true to some degree of any new Supreme Court justice. Even when we can examine experienced nominees' prior decisions, we must acknowledge that the Supreme Court is different. As Justice Robert Jackson noted, the Supreme Court is not given the last word because it is infallible, it is infallible because it is given the last word. The justices are not answerable to anyone, so they remake the law—or not—purely as they see fit, in ways that lower-court judges can only dream of doing.

Being "infallible" like this takes years of practice. It's a learning curve up which all new Supreme Court justices must travel. Still, for Elena Kagan, the climb would be steeper and her ultimate destination would be more shrouded in mystery.

Authored by Professor Brian Kalt MSU College of Law

For interview availability contact Rick Kamel 616-805-4197

SOURCE MSU College of Law