A Layperson’s Musings on a Judicial Nomination

Thoughts on Solicitor General Elena Kagan’s nomination to the Supreme Court.

The confirmation proceedings for Solicitor General Elena Kagan to become the newest Associate Justice of the Supreme Court of the United States have been largely unremarkable in that the hearings have not illumined Kagan’s personal views on any substantive points of law that are likely to be examined by the Court. Many of the senators who are attempting to ascertain the solicitor general’s qualifications and fitness for the appointment have complained about her scant production of literature related to topics as abortion and the right to bear arms.

Indeed, I would assert that this dearth of information is an effort to avoid the fate that befell former Solicitor General Robert Bork, whose writings were utilized to raise questions about his temperament and resulted in the defeat of his nomination to the Supreme Court as potential successor to former Associate Justice Lewis F. Powell in 1987.

Since then, potential nominees have been quite circumspect about the tenor of the writings they publish. As a result, the Senate Judiciary Committee is forced to rely on the testimony of the nominee and the witnesses that have been called to testify.

President Barack Obama’s commissioning of Elena Kagan as the replacement for the retiring Justice John Paul Stevens is neither unexpected nor is it without precedent. Four other solicitors general have occupied seats on the Supreme Court with one serving as Chief Justice.

The first solicitor general to serve on the Court was President Benjamin Harrison’s second solicitor general, the 32 year-old William Howard Taft who served in the position from February 1890 until his confirmation to the Sixth Circuit Court of Appeals on March 17, 1892. T31 years would pass before President Warren G. Harding would commission the former president of the United States on June 30, 1921. Taft, then 63 years of age, succeeded Chief Justice Edward Douglass White, who had died on May 19, 1921 following complications from gallbladder surgery.

Former President Taft was confirmed the same day his nomination was received in the Senate — a feat few justices have achieved. The vote overwhelmingly confirmed his nomination with sixty in favor, four against and 32 abstaining. Chief Justice Taft sat on the Court for more than eight years before retiring in February 1930 due to failing health. He died a month later, on March 8, 1930, at the age of 72.

Since Taft’s appointment to the court three other solicitors general have been appointed to it.

In January 1938, Stanley Forman Reed was commissioned by President Franklin D. Roosevelt to replace Associate Justice George Sutherland who retired after more than fifteen years on the bench at the age of 75. Reed was confirmed within five days and went on to serve over nineteen years on the Court. He retired on February 24, 1957 at the age of 72.

Three and half years later in June 1941, Attorney General and former Solicitor General Robert Houghwout Jackson was nominated by Roosevelt to replace Associate Justice Harlan Fiske Stone. Stone replaced retiring Chief Justice Justice Charles Evans Hughes that month. Jackson was confirmed on July 7 and served thirteen years until he died from a massive heart attack on October 9, 1954.

Almost thirteen years after Justice Jackson’s death President Lyndon B. Johnson nominated the last solicitor general to become a Supreme Court Justice, Thurgood Marshall. On June 13, 1967 Johnson nominated him to replace Associate Justice Thomas Campbell Clark who had retired on June 11, 1967, concluding over seventeen years of service in order to permit Ramsey Clark’s nomination as Attorney General of the United States to proceed.

Solicitor General Marshall was confirmed by a vote of 60 in favor, eleven against and 29 not voting. He served for 23 years before he retired in September 1991 at the age of 83 due to ill health.

Another issue that has been cause for concern among critics of Elena Kagan’s nomination is her lack of prior judicial experience. In my view, this should not be an absolute bar to her confirmation. If one examines the former solicitors general who sat on the Court only Chief Justice Taft and Associate Justice Thurgood Marshall had judicial experience prior to being appointed. Neither Justice Reed nor Justice Robert Jackson served in any judicial capacity before they became Supreme Court Justices. Justice Reed never even attended law school. Justice Robert Jackson did, briefly, but failed to graduate — something which clearly differentiates Kagan from her likely predecessors.

I conclude my remarks on the nomination by reserving my judgment on how Solicitor General Kagan’s judicial temperament will manifest itself in the event that she is confirmed. I reserve my judgment, because I am reminded that in some notable cases, an individual once appointed has not fulfilled the expectations of the president who nominated them. For instance, Oliver Wendell Holmes Jr., Earl Warren and William J. Brennan disappointed Presidents Theodore Roosevelt and President Dwight Eisenhower respectively. President Eisenhower is even reputed to have remarked that he was unsure which was his greater mistake: appointing Chief Justice Warren or Associate Justice Brennan.