January 13, 2009

Obama's pick for Solicitor General -- Elena Kagan -- has never argued a case before the Supreme Court.

In fact, it appears that she has no appellate experience at all.
[F]ormer Solicitor General Charles Fried, now a Harvard colleague of Kagan's, exclaims "Nonsense!" when asked if Kagan's lack of appellate experience is a deficit. "Anyone who tells you it's a problem is trying to maintain a guild lock on Supreme Court arguments."...

Fried himself had not argued before becoming deputy solicitor general in February 1985 -- a few months before he was elevated and confirmed as solicitor general....

... Georgetown University law professor Richard Lazarus -- currently visiting at Harvard -- the appointment of Kagan represents a "return to the mold" of earlier solicitors general, most of whom arrived from academia or the bench with little or no appellate experience.

It was not until Seth Waxman's appointment by President Bill Clinton in 1997, Lazarus says, that a new trend began of drawing SGs from the ranks of private firms, where they had honed litigating or appellate skills....

But the Waxman trend also tracks -- and perhaps responds to -- a new era on the Supreme Court itself, of a searingly "hot bench" with eight very active, combative questioners, as opposed to past courts where as many as three or four justices were almost as silent as Justice Clarence Thomas is now. That intensity has helped promote the notion that a new level of skill and specialization is needed to conquer the modern-day Court....
Well, it will be interesting to see how this works out.

43 comments:

traditionalguy said...

Say it ain't true Barak. She must at least have read Appellate Practice For Dummies. She will get to truly "practice law" until she learns how to do her job.

Yachira said...

She's got no experience; he's got no experience....What, me worry?

Eli Blake said...

Hey, experience is way overrated.

A virgin in California is now up to $3.7 million on e-bay for your chance to have sex with a virgin.

She plans to use the money to pay for college.

Hoosier Daddy said...

A virgin in California is now up to $3.7 million on e-bay for your chance to have sex with a virgin.

Who the hell wants to pay that kind of money for an amatuer?

Michael H said...

$3.7 million? That could re-invigorate student interest in abstinence education in high school.
_________________________________

Anyhow, since I am endeavoring to give the new president and his cabinet a fair shake I will not snark about Elena Kagan's complete and total fucking lack of experience relative to her being selected to argue cases in before the US Supreme Court. Never fucking ever. Not one damn case.

Even the guy who invented the sex tools must have gotten laid at least once in his life. Bono must have sung at least one song before he wrote his critique of Frank Sinatra.

Bob Dylan must have used the telephone at least once before he called Mickey Rourke. Dick Cheney must have had at least one heart attack before he used a pacemaker. Carley Simon must have had at least one lover before she wrote You're So Vain.

Wut the hey? Couldn't she at least have watched re-runs of CSI:Supreme Court? Or maybe Ironsides?

This appointee is of the Jackie Chiles level of Supreme Court experience.

*sips chamomile tea*

But fair is fair, and I'm willing to give her the benefit of the doubt.

chuck b. said...

I can't really comment on qualifications for Solicitor General, but all of my work experience has taught me that "previous experience" is often hugely overrated.

Hoosier Daddy said...

I'm sure she'll be just fine. If a former community organizer/junior senator with no significant accomplishments can be POTUS, I'm sure a Harvard lawyer can handle some crusty old farts in black robes.

Bruce Hayden said...

I can't really comment on qualifications for Solicitor General, but all of my work experience has taught me that "previous experience" is often hugely overrated.

Part of the problem here is that appellate advocacy in general, and U.S. Supreme Court advocacy have become specialized areas in the practice of law. What you are likely to see is Ms. Kagan arguing against attorneys with numerous cases at this level under their belts.

Sure, it is possible that she may be smarter than they are, but more likely, it will be the reverse, since the best and the brightest make the most money out of law school going into practice and not in academia.

My suggestion here is that this is symptomatic of BHO's lack of experience and broad knowledge. He seems to be showing us, time and time again, that he doesn't know what he doesn't know.

10ksnooker said...

You wouldn't want someone who would show the naive One up would you?

sean said...

One day in the early 17th century, as I understand, James I showed up at King's Bench, resplendent as ever, and presided over "his" court. (Which, obviously, hadn't been done for several centuries.)

Since Obama is a lawyer, and smarter than all other lawyers, I think one day he should show up (in a morning coat of course) and argue on behalf of the United States before the Supreme Court. That'll give the "unitary executive" people something to consider.

ron st.amant said...

"Obama's pick for Solicitor General -- Elena Kagan -- has never argued a case before the Supreme Court."

Wow! Neither has anyone else until they argued their first case before the Supreme Court!!

Joe the Electrician said...

Well, it will be interesting to see how this works out.


Baaaawk, bawk, bawk, bawk, bawk, bawk, bawk.

Althouse chickens out from making any substantive statement about something which she presumably knows a lot and has a viewpoint.

tim maguire said...

Per Bruce's comment above, I remember law school as a place of many sayings for instance, "first year they scare you to death, second year they work you to death, and third year they bore you to death."

I generally found them to be true.

The relevant saying here may be "the A students teach and the B students work for the C students."

The Drill SGT said...

Kagan will be taught a few things by the experts, which won't be a terrible thing.

What is potentially more troubling is her apparent inability to recognize the difference between a political/moral viewpoint and the direct legal issues at hand. Specificly her support for the anti-solomon amendment brief she signed as the Dean of HLS.

Let us hope that as SG she both has a better grasp of the legal issues and understands who her client is when she takes office

save_the_rustbelt said...

Any minute now Prof. Althouse will be posting about the Sec Treas who screwed up his taxes.

No experience, no competence, onward!

Henry Buck said...

To. Prof. A. and the lawyers here -
Do any of you really think that decisions by the U.S. Supreme Court are in any way determined by the quality of an attorney's oral argument? I would think that the briefing is more important. The "hot bench" of recent years seems more a function of the Justices using the attorney as a means to attack each other.

The value to private litigants of the specialized supreme court litigators is that they have experience in finding and presenting cases that are worth of certiorari. I don't see that as adding value to the job of the Solicitor General.

EDH said...

Hmmm. Let me see, how might a Solicitor General with a lack of appellate experience falter during oral argument if the justices ask questions about the U.S. Constitution?

Xmas said...

Wait a second!!!

Clarence Thomas is not an exception when it comes to Supreme Court Justices?!?!?

NO!

Quayle said...

I’m not sure I agree that until Waxman, they were formerly all academics.

McCree was a judge on the 6th circuit court of appeals, so he’d heard a few appellate arguments before his time as SG.

Rex E. Lee, who followed McCree, argued his first case in front of the Supreme Court a mere 4 years after he graduated from University of Chicago. The only reason he was at a university before being SG was because the Mormon church asked him to start BYU’s law school.

Fried, who followed Rex Lee, wasn't a professor at Harvard until after he was SG.

Ken Starr was a partner at Gibson Dunn and then went to Washington DC to work for William French Smith.

That’s four in a row that weren’t really academics

David said...

She may be a disaster, she may not. More likely not. But she could be a disaster, which makes the nomination a little shaky.

She will not be writing her own briefs, I would imagine, and those writing them will have plenty of experience.

If she can argue her way into a deanship at Harvard, she can probably hack the oral argument. She may stumble, but she will learn.

But give me a break. Anyone who thinks ideology and political correctness will not rule the Obama Presidency on constitutional questions should take another look at his appointments. In every other area, he is going heavy on experience and track record. Not here--and not with his Justice appointments. What the hell, it's only the Constitution, and that's a living document, isn't it?

Mark O said...

THIS IS THE ERA OF THE SUBLIMELY UNQUALIFIED.


“all of my work experience has taught me that "previous experience" is often hugely overrated.”

Experience is wildly important in litigation. I don’t know what “work experience” in what area of enterprise finds experience to be overrated. Medicine?


“The relevant saying here may be ‘the A students teach and the B students work for the C students.’”

This seems to be a saying promulgated by teachers. It is demonstrably untrue. Check the grades of the lawyers at, say, Cravath or O’Melveny. I think the teachers are the ones who can’t get these jobs.

traditionalguy said...

Is it too late to reconsider turning the Executive Branch over to Obama and Associates? God help these little lost lambs in a jungle filled with legal issues they will not understand. Does she have plans to delegate the job?

Windbag said...

Who cares about her legal credentials and experience, when more important questions abound, such as did she ever have anyone else's baby and pretend it was her own.

SteveR said...

Yeah now that's a good question.

Anthony said...

Now, now people, none of this matters. Remember, experience (as it relates to liberals) is irrelevant when one has the appropriate "wisdom" and/or "judgement". Besides, our Media Betters will make sure none of this matters anyway.

Quayle said...

Anthony is right: we live in the age of the empty suit where ideology and popularity are the only qualifications, and mundane things like experience and probity are deemed entirely unnecessary.

And we'll float on with this idiocy until we're knocked to our senses by the hard cold reality that ideology and popularity are like soup in your hands. You can’t build a foundation with soup.

Case in point: (regardless of how the cocktail conversations went in September) do you think Madoff's client's give a crap today that he voted for Obama? They couldn’t care less.

traditionalguy said...

What does kagan know about Hawaian Birth Certificate law? Barak may wonder about getting some help in this area of the law more than he lets on. Could Barak appoint her to lead an investigation and report back that no one will ever find anything irregular there? This legal issue may have gotten Hillary her Secretary of State position. Sorry, I was just playing the Truther Game to keep in practice.

fcai said...

OJT!

ron st.amant said...

THIS IS THE ERA OF THE SUBLIMELY UNQUALIFIED.

Yes and thankfully that era comes to an end next Tuesday when George Bush's complete and utter incomptence high-tails it back to Crawford, Texas.

Maguro said...

Personally, I was hoping for Caroline Kennedy.

Palladian said...

"Yes and thankfully that era comes to an end next Tuesday when George Bush's complete and utter incomptence high-tails it back to Crawford, Texas."

Yes, and that Pillar of Experience and Competence, Barack Obama, opens the gates and frees the Magical Unicorns.

jdeeripper said...

N word please! She's a Harvard Law Professor. She's qualified for EVERYTHING.

The Drill SGT said...

LOL, from a Drudge link. Apparently Obama's nominee for Sec of the Treasury doesn't understand the tax laws well enough to pay his taxes and the vetting team knew about his problems:

The tax issue relates to Mr. Geithner's work for the International Monetary Fund between 2001 and 2004. As an American citizen working for the IMF, Mr. Geithner was technically considered self-employed and was required to pay Social Security and Medicare taxes for himself as both an employer and an employee.

More on Geithner
Washington Wire: Nomination Hits a SnagGeithner docs (From Senate Finance Committee)The IMF and World Bank reimburse employees, including U.S. citizens, for their U.S. income taxes, and make payments on a quarterly basis to cover those liabilities. They don't, however, make contributions toward Social Security and Medicare taxes, which individuals are expected to pay on their own.

In 2006, the IRS audited Mr. Geithner's 2003 and 2004 taxes and concluded he owed taxes and interest totaling $17,230, according to documents released by the Senate Finance Committee. The IRS waived the related penalties.

During the vetting of Mr. Geithner late last year, the Obama transition team discovered the nominee had similarly failed to pay the same taxes for 2001 and 2002. "Upon learning of this error on Nov. 21, 2008, Mr. Geithner immediately submitted payment for tax that would have been due in those years, plus interest," a transition aide said. The sum totaled $25,970.

The Obama team said that Mr. Geithner's taxes have been paid in full, and that he didn't intend to avoid payment, but made a mistake common for employees of international institutions. That characterization was contested by Senate Finance panel Republicans, who produced IMF documents showing that employees are repeatedly told they are responsible for paying their payroll taxes.

The Drill SGT said...
This comment has been removed by the author.
The Drill SGT said...

BTW: this isn't arcane tax law. Any 1099 consultant knows that they are responsible for both the employee and employer portions of SS and Medicare. and Every corner H&R Block storefront knows the rules as well.

this guy was playing fast and loose, and when he got caught over 2003 and 2004, thought he skated on 2001 and 2002 as well, and didnt amend those years.


Not a good example and one that would have gotten him fired if he worked at the IRS (my wife used to work there, and they have a low tolerance for tax prevarications)

Mark O said...

Bush's folks were qualified. That was not the problem.

This is a question of specific training and experience for a specific job. Rumsfeld was qualified. Enough said?

By the way, ron, when Obama sets up the draft you will seem absolutely prescient.

Simon said...

I would have preferred Kathleen Sullivan, myself, but he could have done a lot worse.

Henry Buck said...
"Do any of you really think that decisions by the U.S. Supreme Court are in any way determined by the quality of an attorney's oral argument? I would think that the briefing is more important."

The Justices themselves have said that this is the case in some cases. Scalia has said several times in interviews that although oral argument rarely changes minds, it often makes up minds, and the late Chief Justice said the same thing in print, see Rehnquist, The Supreme Court 243-4 (2d ed. 2001). In interviews with Brian Garner, IIRC, several justices said that bad advocacy has sometimes lost a case; none of the Justices have intimated this publicly, and I have no inside knowledge, but I suspect that Felker is an example of this (a different kind of example that isn't bad advocacy, as such: with all due respect to Kevin Russell, I think his candor in the Ledbetter argument might have lost him a vote).

I agree that the briefing is probably more important, and that oral argument is probably secondary for deciding many cases, but the Justices have told us that bad arguments have lost cases, and I see no reason to doubt their honesty on the point.

Prosecutorial Indiscretion said...

Kagan is a great nominee and will make a fine SG - but I do think it's funny all the shock and horror being expressed in some quarters that low-level career hires in the Civil Rights Division did not have resumes that demonstrated a specific enough background in civil rights, while the SG nominee has no appellate experience.

From Inwood said...

Hey, it's not like he nominated Harriet Miers.

chuck b. said...

"What is qualified? What have I been qualified for in my life? I haven`t been qualified to be a mayor. I`m not qualified to be a songwriter. I`m not qualified to be a TV producer. I`m not qualified to be a successful businessman. And so, I don`t know what qualified means." --Sonny Bono.

Dave said...

Well, he could have nominated Michelle, although dropping her law license before it got yanked (at least that appears to be the case although it's not clear, as is so often the case with the Obamas) might have been seen as possibly disqualifying her.

Fat Man said...

"Do any of you really think that decisions by the U.S. Supreme Court are in any way determined by the quality of an attorney's oral argument? I would think that the briefing is more important."

As near as I can make out the cases are determined by the Justices preexisting ideologies and they could be briefed and argued by monkeys.

Brent said...

Given Kagan a break -- she's simply been WAY too busy to do appellate litigation. Consider all the time it takes: (1) to cut the library budget enough, and sell off enough parts of the Law School to donors, to fund the extensive catering operation she runs to keep the students happy; (2) to find staff to replace all the staff members who quit on her to escape her trademark full-throated, red-faced temper tantrums, and especially the "kick fests" by which Kagan batters the hell out of the office doors of her targets, with her little pointy shoes (are the Senators going to ask about her unstable temper?); and (3)to scour the country for enough weirdos to staff the new "PC" curriculum (like transsexual scholar Dean Spade).

Oh, and: (4) to pander to students who complain that someone said or wrote something NOT NICE in class -- even if it turns out that someone was pulling a hoax:
http://volokh.com/posts/1228412938.shtml#497676