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Supreme Court nominee Kagan's experience questioned

She's never been a judge and has little trial experience. Republicans and Democrats debate whether that should matter.

May 12, 2010|James Oliphant and Lisa Mascaro, Tribune Washington Bureau

reporting from washington — Elena Kagan, President Obama's choice as the nation's next Supreme Court justice, has never been a judge and until recently had never argued a case in court. Ever since her nomination was announced this week, Republicans and Democrats have been debating whether that matters.

Kagan, 50, has spent most of her career as a law professor, Clinton White House lawyer and dean of Harvard Law School. Her courtroom experience consists of the six cases she has argued in the last 14 months as solicitor general, the government's top lawyer before the high court.

Kagan made her first rounds on Capitol Hill on Wednesday, visiting senators and attempting to allay GOP qualms about her background. But it was clear that some have doubts about her qualifications for the lifetime appointment.

"My view is that her experience is very thin," said Sen. Jeff Sessions (R-Ala.), the ranking Republican on the Senate Judiciary Committee, after an hourlong meeting with Kagan. "She indicated she felt she had the experience to do the job."

While he was mulling over potential nominees, Obama was urged by many Democrats to consider someone from beyond the "judicial monastery" — a candidate with a different kind of background

Each of the nine justices on the current court spent time as a federal appeals judge. When Sonia Sotomayor was chosen by Obama last year, she had a nearly 20-year track record as a New York trial and appeals court judge for senators to examine.

Kagan has no such paper trail, which is both an advantage and disadvantage. Sotomayor's decisions in several cases were criticized by Republicans.

Sen. Richard J. Durbin (D-Ill.), the assistant Senate majority leader, defended Kagan's resume after meeting with her. "Many people come to the court from many walks of life," Durbin said. "I don't hold it against her that she hasn't spent a lifetime as a litigator."

Experience on the federal appeals court is a relatively recent staple for Supreme Court justices. Earlier, nominees, as Durbin noted, hailed from varied circumstances — the most famous example likely being Chief Justice Earl Warren, who served as governor and attorney general of California.

Warren went on to help reshape modern federal jurisprudence.

Kagan is most often compared to William H. Rehnquist, who was a lawyer in the Justice Department when President Nixon selected him for the court in 1971. Rehnquist had never served as a judge but had spent years in private practice in Arizona. Like Warren, he later became chief justice.

But another name mentioned frequently Wednesday was that of Harriet Miers. She was the obscure White House lawyer named by President George W. Bush to the court in 2005. Miers, who had worked in private practice in Dallas, later withdrew her nomination over concerns about her experience and her involvement with several controversial Bush administration policies.

At the time, Democrats worried that Miers would be overly loyal to the man who nominated her and not function as an independent judge.

Those same concerns were echoed Wednesday by Mitch McConnell of Kentucky, the Senate's top Republican. Speaking on the Senate floor, McConnell made note of the president's choice of words when Obama, in announcing his nominee, said that he and Kagan are "friends."

"It's my hope that the Obama administration doesn't think the ideal Supreme Court nominee is someone who would rubber-stamp its policies," McConnell said. "But this nomination does raise the question."

After Miers was chosen, Democrats wanted to know more about her views. One of those concerned was then-Sen. Obama.

"Since her experience does not include serving as a judge," Obama said in 2005, "we have yet to know her views on many of the critical constitutional issues facing our country today. In the coming weeks, we'll need as much information and forthright testimony from Ms. Miers as possible."

After his meeting with Kagan, Sessions said much the same.

"She has no judicial record and only a very small actual record as a practicing lawyer," Sessions said. "I think the American people are entitled to know what kind of positions she took and what kind of issues she was involved in during her time of public service."

joliphant@tribune.com

lisa.mascaro@latimes.com

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