If you’re reading this blog, you already know that President Obama nominated his Solicitor General, Elena Kagan, to replace Justice John Paul Stevens on the Supreme Court.

SCOTUSBlog of course has all the details about Kagan.

Eric Turkewitz raises the nagging questions that a lot of trial lawyers have:

Did Kagen appear in the trenches, battling for the little guy against powerful interests?

And here is what I found from Goldstein’s 9750 Words on Elena Kagan:

Upon completing her clerkship, in 1988, Kagan went to work as an associate at Williams & Connolly in Washington, D.C.

That was it, out of 9750 words. From there she went in 1991 to the law faculty of the University of Chicago. A three-year stint at BigLaw seems to be the sum total of her private practice. While I don’t hold out much hope she did anything other than represent corporate interests, there is the slim home that she helped an individual. Maybe a pro bono representation of some kind?

Does anyone know anything about this three-year empty hole in the resume where she worked for BigLaw? Who did she represent? Why did she choose to go that route? Why did she find it more desirable to go elsewhere? Did she ever sit at her desk with a box of tissues for a client? Any client?

My gut reaction is the same. Why does the Supreme Court seem to have more experience in politics than in the actual operation of the law?

On reflection, though, I don’t think the "in the trenches" argument holds up.

First, let’s look at the current "trenches" experience on the Court, i.e. experience in the nuts-and-bolts application of the law, rather than in politics or legal policy.

Justice Scalia started out as an associate at Jones Day, where he worked for six years, probably doing little work of real consequence, given the hierarchical nature of corporate firms.

Justice Kennedy was in private practice for fifteen years or so, though the type of work he did was never clear to me.

Justice Thomas was in-house counsel at Monsanto for three years early in his career, probably also doing little work of real consequence.

Justice Ginsburg was the chief litigator for women’s rights issues at the ACLU, and in that capacity argued a few cases before the Supreme Court and set strategy for the organization.

Justice Breyer doesn’t seem to have any "trenches" experience.

Justice Alito was an Assistant United States Attorney for four years.

Chief Justice Roberts was head of the appellate practice at Hogan & Hartson, and in that capacity argued a few dozen cases before the Supreme Court.

Justice Sotomayor was an Assistant District Attorney in New York City for fours years, then had her own small-time practice for three years, then spent eight years at Pavia & Hartcourt working on intellectual property litigation, international law, and arbitrations.

The experiences of Justices Scalia, Thomas, Ginsburg, and Roberts should be discounted. Their work was either for only a few years at the very early part of their career and involved primarily institutional representation (e.g., Monsanto Corporation or the United States itself), or was in a particularly rarefied air, e.g. Supreme Court cases. That leaves us with the "trenches" experience of Justices Kennedy, Alito, and Sotomayor, who together have 34 years of "trenches" experience, compared to the, say, 130–150 years of collective pre-Supreme Court experience on the Court, most of which was policy work for the government or political work for politicians.

Do we need more? I don’t think so.

The question reminds me of The Justice as Commissioner: Benching the Judge-Umpire Analogy, 119 Yale L.J. Online 113, which argued:

The judge-umpire analogy has become “accepted as a kind of shorthand for judicial ‘best practices’” in describing the role of a Supreme Court Justice. However, the analogy suffers from three fundamental flaws. First, courts historically aimed the judge-umpire analogy at trial judges. Second, courts intended the judge-umpire analogy as an illustrative foil to be rejected because of the umpire’s passivity. Third, the analogy inaccurately describes the contemporary role of the modern Supreme Court Justice. Nevertheless, no workable substitute for the judge-umpire analogy has been advanced. This Essay proposes that the appropriate analog for a Justice of the Supreme Court is not an umpire, but the Commissioner of Major League Baseball.

As I wrote back in March, I agree with that argument regarding Supreme Court Justices. Given the Justices’ policy-making focus and their practice of deciding cases based on the long-term consequences rather than the particular facts of the case, the umpire analogy makes little to no sense for them.

Fact is, the Supreme Court doesn’t get involved in the "trenches." Even in the "original jurisdiction" cases, where the Constitution makes them the trench, they refer all the dirty work out to a "special master."

Most of the time, they’re policy-making politicians like Congress, setting up big generalized rules with which the rest of us must deal. By tradition and by necessity, the Supreme Court rarely sets down useful, unambiguous rules for the benefit of the public. Instead, they reverse or affirm lower courts based on their own views of what the law should be, then justify that decision with sweeping essays about precedent and the public policy of the United States. Given the context in which those essays are created, they’re bound to be vague, self-contradictory, and inscrutable to lower courts.

To put it another way: if someone is going to lose, it’s because the Supreme Court wants them to lose, not because they don’t understand the reality of the law. They don’t care about the reality. That’s the way it has always been and the way will continue to be.

Thus, as much as I would like to see a "trenches" lawyer on the Supreme Court, it’s more important to me that the nominee have sound views on legal policy — sound views on who should win and who should lose — than genuine experience in legal reality. What good is experience in the trenches if the Justice ends up ruling the wrong way anyway?

  • Eric T.

    That leaves us with the “trenches” experience of Justices Kennedy, Alito, and Sotomayor,
    If you take away the prosecutorial experience of Alito and Sotomayor, you are left only with Kennedy.
    I’m looking to see if there will be any members of the court that actually appeared in court to represent Joe Sixpack against big biz or big gov’t.
    That leaves only the mysterious Kennedy.