Benching

Word on the street is that Obama’s going to pick John Paul Stevens’ replacement in the next few days. I really hope he doesn’t pick Elena Kagan. Don’t get me wrong—I think she’s brilliant and she could do the job. But if Obama is picking her because she’s not a judge, to add some diversity of background to the bench, well, she’s not a good choice. Her experience is even less relevant to being a Supreme Court justice than any judge or even of any of the other short-listers. She’s been in academia her whole life. She’s never practiced. Her first oral argument as Solicitor General was her first argument in court—ever. Her experience in practice consists of two years as a junior associate at a big law firm, and a couple of years as government counsel. The rest of her experience has been solely in academia (until becoming S.G. last year, of course). And even her academic record is thin—she doesn’t have a lot in the way of publications. She’s a brilliant, unknown quantity, with very limited experience as an advocate.

Now, one could say that her administrative experience—her time as Dean of Harvard Law School—has prepared her as much as, say, being governer of Michigan has prepared Jennifer Granholm to be a Supreme Court justice. And it’s true that she probably has numerous skills honed in that role that other Supreme Court justices don’t have, and that they might benefit from having. But that’s simply not enough to outweigh her lack of actual lawyering experience.

Of course, Diane Wood doesn’t have that much practical experience, either. She also spent a scant few years in government service and private practice before going into academia.  She spent some time at Justice, true, but her background is also not of a practicing attorney.  But Diane Wood has spent many years on the bench—and a very tough, Seventh Circuit bench—which gives her a huge edge over Kagan.

Frankly, Sidney Thomas has the most diverse background of any of the short-listers. He was a lawyer! He represented clients! For years and years and years! None of the most recently confirmed Supreme Court nominees has as much actual non-government lawyering experience as Thomas—except John Roberts, of course, who was in private practice for many, many years.  (While Sotomayor and Alito also each had good experience, too, they were each government lawyers for a lot of that time.)

So I’m crossing my fingers over the next few days that Obama doesn’t pick Kagan for the bench. I am sure she could do a good job, but I’m equally sure that it will take her several more Terms to get into a good rhythm than it will Wood, Thomas, or Garland (who is a great option also, but a very safe one for Obama, and I don’t think he’ll waste this nomination on such an easy confirmation).  We’ll see what happens.

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