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For many high court nominees, no experience is no problem

May 12, 2010

Like many, I was struck by President Barack Obama‘s selection of a nominee – Elena Kagan – for the U.S. Supreme Court that had no experience on the bench. That seemed to me an anomaly, and to run contrary to what I had initially thought a Supreme Court nominee should bring to the table – namely, experience.

Solicitor General and Supreme Court nominee Elena Kagan, rides the Senate Subway during her day of meetings on Capitol Hill in Washington, Wednesday, May 12, 2010.(AP Photo/Harry Hamburg)

But as I heard on National Public Radio today, the current court is out of the ordinary in the amount of judicial experience they had prior to being nominated.

NPR’s Nina Totenberg reported this morning that of the 111 justices that have served on the Supreme Court, 40 had not judicial experience prior to their appointment.

From NPR

The current Supreme Court is composed of men and women who all served previously on the lower federal appeals courts. But in historical terms, this is the first time the court has had such a uniform professional pedigree.

“The court that decided Brown v. Board of Education in 1954 did not have a single justice who had been a judge,” noted Walter Dellinger, a constitutional law professor and Supreme Court advocate. “It had three former attorneys general, three former U.S. senators, a former governor of California [and] an early chairman of the Securities and Exchange Commission.”

In fact, as Dellinger observes, of the 111 justices who have served, 40 had no prior judicial experience.

“The ranks of those who have not been judges before include some of our most illustrious Supreme Court justices,” he said. “I think, in fact, if you compare the justices who have not been judges, they stand out as a more distinguished group in their work on the Supreme Court than those who had previously been judges.”

Learning on the job isn’t limited to the country’s highest court, either, as points out. In an article today, Stateline points to research showing that 85 percent of state high courts have at least one member with no previous judicial experience. Kentucky happens to be one of the states in the minority.


The National Center for State Courts, a nonpartisan court research organization, found that the vast majority of state “courts of last resort” — 46 of 53 — have at least one member with no prior experience as a judge. The 53 courts surveyed include the supreme courts in all 50 states and the District of Columbia, plus the highest criminal courts in Oklahoma and Texas, which are separate from those states’ supreme courts.

In fact, there are 19 sitting state high court judges who had no prior judicial experience when they joined their courts, the center found. By contrast, only seven states— California, Kentucky, Louisiana, Michigan, Oklahoma, South Dakota, and Tennessee — have high courts comprised entirely of judges with lower-court judicial experience.

Should these high court judges have to spend time in the “minor leagues” before being called up?

Though my initial reaction was to say yes, that’s not where I stand after giving it some thought. Judges at the trial level have skills particularly suited to their job – overseeing trials and conducting hearings leading to some kind of agreeable resolution of legal disputes – but it’s a different ball game (to continue the sports metaphor) once you get to the appellate level, such as the Kentucky Supreme Court or the U.S. Supreme Court.

At these levels, justices are called upon to argue the law behind the case, and make a determination about its application, not serve as a referee in an ongoing dispute. That analysis and judgment can be applied just as effectively and professionally from someone who has spent their life involved in the legal system and studying the law without having worn a robe.

So what are your thoughts?



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