Elena Kagan is a topic about which I’m tempted to maintain “rational ignorance”. There’s hardly any prospect that her appointment to the Supreme Court will be rejected. After all, whatever the facts, no one is going to believe that a former dean of Harvard Law School, soon to be the alma mater of a majority of the Court, is anything other than a paragon of legal brilliance.
My own view of HLS was, I must confess, blighted 35 years ago. I was a very fledgling pension lawyer back then, and the Harvard Law Review published an elaborate student note on ERISA’s fiduciary standards. Unfortunately, the editors got the name of the statute wrong. The article is still cited by judges on occasion, largely, I suppose, for the pleasure derived from inserting “[sic]” into “Fiduciary Standards and the Prudent Man Rule Under the Employment [sic] Retirement Income Security Act of 1974”.
The Harvard Law Review would not conceivably misspell “Marbury” or confuse “Brown” with “Braun”. The name of a mere statute was a matter deserving less attention.
Listening to arguments about judicial appointments, one might think that the primary business of the Supreme Court was deciding questions of Constitutional law. Quantitatively, though, the vast majority of cases involve the interpretation of ordinary laws, many of them dauntingly convoluted, many others festooned with decades of glosses by judges of varying perceptiveness writing opinions of varying clarity. There are no grand theoretical debates about how to read these laws. Everyone agrees that they are to be construed in accordance with their “original meaning”. But that task isn’t easily accomplished, and the judge who isn’t familiar with, say, the Employee Retirement Income Security Act of 1974 won’t find the plethora of helps that are available to construers of the First Amendment.
For all the publicity surrounding a case like President Obama’s bête noir, Citizens United v. Federal Election Commission, one like Conkright v. Frommert, dealing with a pension or welfare plan participant’s ability to obtain judicial review of the plan administrator’s decisions, has considerably greater practical impact. While first-class Constitutional scholars are desirable Justices, lawyers who can penetrate the complexities of statutory law are essential.
Facility in working with statutes is a skill acquired by long practice. Inexperienced intellect isn’t sufficient, and experience can come only from the practice of law, either as an advocate or as a judge. In that respect, for all her palpable weaknesses as a potential Justice, Harriet Miers, who had spent years working on complex commercial transactions and risen to a high position in her law firm, was a better choice than Elena Kagan, whose actual legal experience is about equivalent to that of a mid-level associate.
From the standpoint of right wing self-interest, narrowly construed, filling a liberal seat with an apprentice is not a bad outcome. Still, it’s probably not the best thing for the administration of justice and sound development of the law. It also illustrates, as if we needed more illustration, how Barack Obama continues to be the Celestine V of American Presidents.
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