Kagan Confirmed to Supreme Court

08/06/2010

The Senate has confirmed Elena Kagan as the 112th justice and fourth woman to serve on the Supreme Court. 

The vote was 63-37.  Five Republicans joined all but one Democrat and the Senate’s two independents to support Kagan. In a rarely practiced ritual, senators sat at their desks and stood to cast their votes with “ayes” and “nays.”

It should be noted that Kagan isn’t expected to alter the ideological balance of the Court, where Kagan is replacing John Paul Stevens who was considered a leader of the liberal side of the Court.

Nevertheless, the two parties still clashed over her nomination. Republicans argued that Kagan was a political liberal who would be unable to be impartial. Democrats defended her as a highly qualified legal scholar.

Kagan is the first Supreme Court nominee in many years who has no actual experience as a judge.  Her lack of judicial experience was the stated reason for one fence-sitting Republican, Sen. Scott Brown of Massachusetts, to announce his opposition to her confirmation Thursday, just hours before the vote.

Though calling her “brilliant,” Brown – who had been seen as a potential GOP supporter – said she was missing the necessary background to serve as a justice.

“The best umpires, to use the popular analogy, must not only call balls and strikes, but also have spent enough time on the playing field to know the strike zone,” Brown said.

I have to admit I like Brown's sound bite analogy to baseball umpires, but I would have to counter that an umpire with experience does not necessarily make for a good umpire (just like a judge with experience may not necessarily make for a good judge).  Being from St. Louis and a Cardinal fan, I would cite Don Denkinger as my authority.

The media and politicians in opposition of any nominee (whether conservative or liberal) have traditionally advanced the myth that judicial experience is a pre-requisite for a Supreme Court justice.  The fact is that two of the last four previous chief justices -- William Rehnquist and Earl Warren -- had no judicial experience when appointed to the Court by Republican presidents.  Neither did other famous justices, including Lewis Powell, Abe Fortas, Bryon White, William O. Douglas, Felix Frankfurter, Louis Brandeis, and John Marshall, known as the "Great Chief Justice." Indeed, according to Findlaw.com's Supreme Court Center, appproximately 40 Supreme Court justices had no judicial experience when they were first nominated.

To stick with Brown's baseball analogy, I would think even he would admit (if he were truly a baseball fan) that the strike zone is an illusive concept.  While baseball rules provide a precise definition for the strike zone, in practice it is up to the judgment of the umpire to decide whether the pitch passed through the zone. Historically, umpires often call pitches according to a contemporary understanding of the strike zone rather than the official rulebook definition.  If this were truly the case, having baseball umpires on the Supreme Court would make for very activist judges.