Senate confirmation hearings began June 28 for Supreme Court nominee Elena Kagan. If confirmed—even Republican Senators seem resigned to that fact—the 50-year-old former dean of Harvard Law School would become the fourth woman to serve on the U.S. Supreme Court.
Michael Rubin, an attorney with McGlinchey Stafford, is a member of the Supreme Court Historical Society, a nonprofit organization that is dedicated to the collection and preservation of the history of the court.
Rubin is known for his appellate advocacy, arguing major cases before numerous state and federal appellate courts, including the U.S. Fifth and Seventh Circuit Courts of Appeal and the Louisiana Supreme Court.
1. Should Americans be concerned that Elena Kagan doesn’t have more judicial courtroom experience?
No. Historically, that has not been an issue for a justice. It’s a valid question to ask, but our justices have come from all walks of life. We’ve had justices who have been governors, justices who have been private practitioners and justices who have been transactional lawyers who don’t litigate. We’ve had justices who have been law professors, and we’ve had justices who have been judges.
2. Judicial inexperience aside, on what should we base her qualifications?
She should be judged on whether she has the intellectual capability and skills necessary to sit on the Supreme Court. Does she have the legal analytical skills? Lots of wonderful judges were not judges in advance. Does she have the capability? She’s proven that she does.
3. Should she be considered a threat to conservatives?
There are currently more votes on the side for conservatives on the Supreme Court, so it doesn’t make a difference whether she’s a liberal or conservative. If you want liberal outcomes, she’s not going to change the result. But justices are not supposed to represent their political philosophy. All judges I’ve ever known take their role of their lifetime appointment seriously. They are no longer representing a viewpoint or an administration. They represent justice. Each of them does what each can to achieve that justice.
4. Did you feel like she won any conservatives over with her answers during the confirmation hearings?
She seems to have drawn the respect of those who were questioning her. Whether that translates into votes is a different story.
5. What can we expect from Kagan as a Supreme Court justice?
She is in the mainstream of the American judicial philosophy. Attempts to paint her with some kind of left-wing agenda have failed. It was best shown when Sen. [Jeff] Sessions [R-Ala.] asked her if she felt as though she were more like Justice [Ruth Bader] Ginsburg or more like Justice [John] Roberts. The line of questioning seems to signal to me that the questioner thinks she’s in the mainstream.
6. Did the Senate overstep its boundaries with any questions?
It’s not unfair to ask any question. But I don’t think you can expect to get an answer if it involves predeciding a case. But the judicial nominees are perfectly capable of answering or not answering questions.
7. What sorts of questions are appropriate?
It’s entirely appropriate to ask a potential justice: Do you have a judicial philosophy, and what is it? Are you an originalist like Justice Roberts and Justice [Antonin] Scalia? Or do you believe in the living constitution like Justice [Stephen] Breyer? It’s appropriate to ask questions about the role of certiorari, which is how should we decide what cases we are taking. Also, their view on stare decisis: the principle that you should not overrule prior decisions. It’s improper to ask potential justices if they think an issue was rightly or wrongly decided, and what do they think about this particular legal issue.
8. But the Senate does ask those questions. So why is it improper?
The reason is that you don’t want them prejudging issues in the abstract. Cases only come to the court under specific facts and circumstances, and you wouldn’t want someone to judge a case where he or she has prejudged the issues. Justices properly avoid questions when they are asked: “What do you think about X as a principle of the law, or do you think there’s too much tort litigation?” “Or do you think businesses get a fair shake?” Those go too close to specific cases and not to their approach of the law. We each hope that when our case comes up, the judge won’t approach it because the judge knows what the answer should be. We hope the judge considers the facts of our case to be unique and treats them as such.
9. How will her role as solicitor general affect her role as a justice?
It doesn’t interfere at all. One shouldn’t confuse the role of lawyer with the role as judge. A lawyer is a fair advocate and a zealous advocate of the client’s view. What a lawyer says on behalf of a client in court is important, but it may or may not be a reflection of that lawyer’s political, social or economic beliefs. We wouldn’t want to be restricted in hiring lawyers who only believed the way we did. So it’s not fair to say that a lawyer took case X, therefore that lawyer must believe in X. Lawyers are forbidden from giving their personal belief in court. They are confined to articulate the facts of the case.
10. And what’s your opinion of Kagan?
She is a person who has a great depth of knowledge about the law, the judicial system and of the Supreme Court.
