Supreme Court Appointments: The Issue of Prior Judicial Experience

As has widely been reported by the media, October marks the beginning of the new Supreme Court term. It is also the one-year anniversary of Justice Kagan’s ascent to the nation’s highest court. Looking back at her confirmation hearings, it is interesting that Justice Kagan received relatively few questions about her lack of prior judicial experience. Far from eliciting fatal criticism, the absence of a past on the bench more often led to reminiscing about how neither Felix Frankfurter nor William Rehnquist had any judicial experience before their appointments, but had both gone on to have lengthy and successful tenures.

Justice Kagan’s experience is in sharp contrast to that of Jonathan Sumption QC who, at almost exactly the same time, was seeking to ascend to the United Kingdom’s newly formed Supreme Court. Prior to 2010, Mr. Sumption had once previously applied to fill a vacancy on the UK’s highest court, but his candidacy had lead to a revolt in the Court of Appeal (the UK equivalent of the Circuit Court of Appeals) and his application this time around was once again threatening to have the same effect. Why, critics asked, would any high-earning lawyer ever again apply to fill a High Court or Court of Appeal vacancy if they know that it is possible to wait out your career, making considerable sums of money, and then swoop in at the last moment to take a seat on the Supreme Court? Much airtime and considerable column space was given over to questioning whether it is proper to appoint a Supreme Court Justice who has presided neither over a trial nor an appeal.

So why has the experience in the United States been so different? Why did Justice Kagan’s appointment not lead to mass fear that American lawyers would no longer be interested in serving among the lower ranks of the federal judiciary? I offer here two suggestions.

First, and perhaps most obviously, the culture of the legal systems in both countries played a part. In the United Kingdom, the profession of Barrister, from which the overwhelming majority of judges come, is exceedingly hierarchical. During the recent public inquiry into Britain’s participation in the Iraq War, the former Attorney General, Lord Goldsmith, was asked whether a particular member of Tony Blair’s administration had pressured him into certifying the legality of the invasion. Instead of choosing to rely exclusively on an argument of personal and professional integrity, Lord Goldsmith responded that the suggestion was preposterous as the individual in question had been a junior to him at their chambers (a firm of barristers). The same allegiance to seniority simply does not exist in the United States. Sure, there are cultures of hierarchy within private firms and even among Government lawyers. But it is also true that the American legal system, like so many other professions in this country, much more adheres to the mantra that if you are good enough for the job, your age should not matter.

Second, both the United Kingdom and the United States have radically different conceptions of what the appropriate role of a Supreme Court ought to be, and the criteria for choosing judges accordingly reflects this. In the UK, the Supreme Court is the final arbiter on what one would call traditional legal disputes. Its docket is filled with non-controversial commercial, tort and administrative cases. The Court rarely decides important issues of public policy, and therefore its justices are chosen from those who have proven their lawyerly skill through a lifetime of legal and judicial practice. In the United States, however, the Supreme Court plays a far more complicated role. It is widely acknowledged that the Justices have a major say in shaping American political and social life. The Supreme Court is an increasingly politicized institution and it is therefore no surprise that the President will choose a nominee who is above all a politically safe pair of hands, regardless of his or her age. Put simply, Justice Kagan may have been younger and less experienced than Merrick Garland and Diane Wood, but in terms of politics, the “youngster” was the more skilled operator.