Judicial experience is no criterion

The inevitable battle over Elena Kagan's nomination to the Supreme Court is just beginning, but one aspect of the criticism of her nomination is clearly irrelevant. Some critics have complained that she has no judicial experience, which is true. She has spent her entire professional career in academia and government service. But to claim that never having worn a judge's robe disqualifies her for the bench ignores history. Some of the court's most honored and respected justices had no judicial experience before being nominated to the nation's highest court. Among them: Chief Justice William Rehnquist, Justice Lewis Powell, Justice William O. Douglas, Chief Justice Earl Warren, Justice Charles Evans Hughes, Justice Louis Brandeis, Justice Byron White, Justice Felix Frankfurter, and Chief Justice John Marshall, considered by many historians to be the most important member of the court ever. So lack of judicial experience should not be any impediment to nomination to the Supreme Court.

Kagan's nomination will likely turn on her work at Harvard Law School, where her record gives ammunition to her critics from the left and the right. At Harvard, she denied military recruiters access to the campus because of the armed forces' prohibition against homosexual conduct. Harvard lost a court battle over its policy. Conservatives are still unhappy with her defense of the Harvard policy against military recruitment. But as Harvard Law's dean, she also revitalized the school by bringing in new, conservative faculty so that the school boasted of the highest academic credentials, regardless of political leanings, and liberals are still unhappy with her cozying up to conservatives. Because Kagan's Harvard tenure gives both sides something to complain about, those criticisms will likely even out, paving the way to her confirmation.

But if critics harp on her lack of judicial experience, they should be laughed out of the Senate hearing room.