by Eric Rader
The Senate confirmation battle can now begin. Two weeks ago, President Obama announced his nomination of U.S. Solicitor General Elena Kagan to replace retiring Justice John Paul Stevens on the Supreme Court.
Most Republican senators will reflexively oppose Kagan, regardless of her ample credentials to serve on the high court. Much of their early criticism of her has focused on her apparent lack of qualifications to serve on the Supreme Court because she has never served as a judge. Critics have argued that she has a thin resume and that the Supreme Court is not a place for “on-the-job training.”
This criticism, however, ignores the history of our nation’s highest court. The Constitution does not require that Supreme Court justices have judicial experience. Indeed, many of the court’s most important justices, both conservative and liberal, came to the court without having ever served as a judge. It has only been in the last 35 years that presidents have restricted their selections to incumbent judges. Some of these recent justices have had distinguished careers, but it is clear that the membership of the Supreme Court is sometimes too insulated from the public it should be serving.
President Obama’s selection of a “non-judge” indicates his desire to have justices who understand that the laws they are interpreting affect the lives of regular people.
Though Kagan’s opponents decry her apparent lack of experience, their real beef is with her supposed liberalism. Certainly, she has worked for Democratic presidents (Clinton and Obama) and served as the dean of Harvard Law School, a school often regarded as a bastion of liberal legal thinking.
As Harvard dean, Kagan stood up for the LGBT community by refusing to allow military recruiters on campus to protest its policy of dismissing gay service members.
Interestingly, many liberals think that Kagan is too moderate on some issues, and wish the president would have appointed a genuine progressive to balance the conservative tilt of the Supreme Court. However, no one knows for sure how any judicial nominee will decide cases, and Kagan’s consensus-building credentials may prove useful to securing progressive victories in upcoming cases.
The LGBT community has every reason to be interested in the outcome of the Kagan confirmation process. In recent years, the Supreme Court has dealt with a number of important LGBT cases, including the right of communities to pass non-discrimination laws and the constitutional right of same-sex couples to privacy in the bedroom. The high court stood up for equality and fairness in these cases, but the final votes have been very close. It is likely that gay marriage and other LGBT issues will reach the Supreme Court in the next few years, with a Justice Kagan getting a chance to vote on the final decisions.
While Kagan’s principled stand against military discrimination is heartening, it is important to look at her whole record. Some liberal critics contend she has not been strong in supporting full equality for LGBT folks. However, in her current position as U.S. solicitor general (the federal government’s lawyer before the Supreme Court), she is not always free to choose her positions based on conscience, but must follow statutes as they are written. A lifetime appointment to the Supreme Court would free her to decide cases based on her own principled view of the Constitution. While we don’t know exactly what Kagan’s judicial philosophy would be, she seems to have a healthy respect for minority rights.
In the end, Kagan’s lack of judicial experience should not be considered a barrier to her serving as a justice on the Supreme Court. Her long legal career, including a clerkship for the civil rights pioneer Justice Thurgood Marshall, should be examined to determine her fitness to serve on the nation’s highest court.
Kagan has demonstrated past solidarity with the LGBT community and other minority groups. In the coming confirmation battle, it is important that we ask questions, and voice our support for confirming a Supreme Court justice who will look out for the rights of all people.