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January 13, 2009

No experience necessary?

Brian Schwarz and Thomas Lifson
Barack Obama's team is top-heavy with academics. His touching faith in professors and lack of emphasis on practical experience extends to his pick for Solicitor General, the government's lawyer in court cases, Harvard Law School Dean Elena Kagan.

Despite a distinguished academic career, Ms. Kagan does not have actual experience doing the sorts of things an SG does. Tony Mauro, writing in Legal Times, notes that most of the legal establishment is fine with her lack of courtroom chops

If confirmed, Elena Kagan will soon walk into this club as solicitor general, without a single Supreme Court oral argument to point to in her past -- or, it appears, any other appellate experience. President-elect Barack Obama said last week he would nominate the Harvard Law School president to the position.

Suddenly, that glaring gap in her resume seems not to matter at all to the specialists, who have uniformly greeted her nomination with high praise.

"Appellate advocacy is only one of the talents needed," says Harvard Law School professor Laurence Tribe, a veteran advocate.

"I don't think it's a major factor," says Andrew Frey of Mayer Brown, who has argued 64 times before the high court -- more than any other lawyer currently in private practice.


Other, however, note that in recent decades the Supreme Court has become "hot" during oral arguments, pressing counsel to argue on their feet, and experience in front of the Court may be necessary. Dean Kagan clerked for Supreme Court Justice Thurgood Marshall, so she knows the back end of Court behavior, but as far as actually doing the job of arguing before the Court, her experience is zip.

In an earlier era, some SGs left the arguing to their expert staff, but the modern expectation is that the SG will argue frequently -- and take on the most important and high-profile cases, to signal to the justices that the government takes them very seriously.

No doubt Dean Kagan is a brilliant scholar, but it remains to be seen whether or not her lack of actual experience doing the work of argument before the Court is a drawback.

In other words, she is quite similar to the man she will serve: an nice-looking resume, but no actual experience.

Hat tip: Melvyn L. Bernstein

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