As someone who is fascinated by the U.S. Supreme Court, I’ve been consuming every bit of information about President Obama’s recent nominee, Elena Kagan. Unfortunately, it seems as if the Alligator’s Editorial Board has not consumed even half of that information.
Tuesday’s editorial, “Poor Judgment,” displayed poor judgment questioning Kagan’s nomination on unsubstantial grounds and misrepresented what little facts that were cited. The main complaint seemed to be that Kagan “has no experience as a judge, federal or otherwise.”
Perhaps it would have been helpful to mention that former President Bill Clinton nominated Kagan for a federal judgeship in 1999. Her nomination was stalled by a Republican-controlled Congress that did what every partisan Congress does when a president of the opposite party is nearing the end of his term: delay voting on a court nomination in the hopes that its party will win the White House and then nominate someone with its ideological views. Kagan’s nomination was not rejected. It died out because a president’s unconfirmed nominations expire at the end of the presidential term. Because the next president was a Republican, presumably Kagan would not be nominated for another federal judgeship, so she pursued another legal career path.
Ultimately, what the writer failed to understand is that Kagan’s lack of experience as a judge is not the end of the world. In addition to former Chief Justice Earl Warren, more than one-third of all Supreme Court justices, including the late Chief Justice William Rehnquist, did not serve as judges before joining our nation’s highest court. In fact, Kagan’s experience as solicitor general is actually more applicable to serving as a Supreme Court justice than most judgeships. The solicitor general represents the U.S. government in up to two-thirds of all Supreme Court cases each year. As such, the solicitor general has more experience with the Supreme Court and insight into its decision-making process than most judges at any level, aside from the Supreme Court justices themselves. In fact, the solicitor general is often referred to as “the 10th justice.” True, Kagan has served in this position for a little more than a year, but in that year she has held her own in oral arguments against the court’s fiercest justice, Antonin Scalia—a feat that should not be minimized.
The Editorial Board’s characterization of former President Eisenhower’s comment about the late Chief Justice Earl Warren was also irresponsible and misleading. Eisenhower said appointing Warren was the “biggest damned-fool mistake I ever made” not because Warren simply shifted the court’s politics but because Warren shifted the court in a liberal direction that Eisenhower—a Republican—disagreed with. We would expect a Democratic president to feel the same way had he or she selected Chief Justice John Roberts and Associate Justice Samuel Alito, given that these two conservatives have facilitated a massive rightward shift in their four years on the court.
Furthermore, the writer’s concern that “[t]he last thing the court needs is an unknown quantity shaking up the system” is quite an exaggeration. That line makes Kagan sound like a radical extremist yearning to burst free from her current mold. You know, the mold she’s been in for the past 50 years, just waiting until she has that chance to be nominated to the Supreme Court and then she can do whatever her radical heart desires.
It’s fine to raise legitimate questions about how many cases Kagan might have to recuse herself from given her position as solicitor general, or to ponder the implications of having an Ivy League-educated court when most Americans don’t attend Ivy League schools. But the questions this editorial raised about Kagan’s experience were unfounded and presented without context. Because most student readers probably use the Alligator as their only news source, the editorial did the university community a significant disservice.
Deborah Swerdlow is a UF alumna and former Alligator staff writer
