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Amy M. Wilkinson
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Amy M. Wilkinson

Amy M. Wilkinson is a senior fellow at Harvard University's Center for Business and Government and a public policy scholar at the Woodrow Wilson Center. Visit her < a href="www.amymwilkinson.com">website for more.

Not one of the 'old boys'

Q: In appointing a new Supreme Court Justice to replace John Paul Stevens, President Obama was seeking someone who could provide intellectual and personal leadership of the liberal block. His gamble in nominating Elena Kagan is bringing in someone from outside the 'priesthood' of appeals-court judges. What are the advantages and disadvantages of selecting a leader with non-traditional qualifications?

What's old is new again as we debate a Supreme Court nominee without prior judicial experience. It's a case of amnesia in America. Somehow today the recruitment pool for the court has shifted to favor the 'priesthood' of appeals-court judges. Yet, in 1960 when Elena Kagan was born, five of nine Supreme Court justices had no previous experience on the bench.

Throughout the Supreme Court's history, 40 justices have served without any prior judicial experience. For example, President Richard Nixon nominated Lewis Powell and William Rehnquist to fill two Supreme Court vacancies in 1971. Neither had served on the bench. And, President Franklin Delano Roosevelt nominated two Supreme Court justices with backgrounds very similar to that of Elena Kagan. Felix Frankfurter joined the highest court from the Harvard Law School faculty, and Stanley Reed was promoted directly from the Solicitor General's Office.

President Obama may be nominating someone outside of today's judicial expectations, but Elena Kagan is no outsider. Sure, she comes with a shorter paper trail than many previous Supreme Court nominees, but there is no doubting her credentials.

Kagan is the former dean of Harvard Law School who currently serves as solicitor general. In the last year, she has argued six high-profile cases before the Supreme Court, and she shares a background as a law professor with four current justices.

If one thing doesn't look like the others in Kagan's case, her broader background would likely be an asset. As one of only four women to serve on the Supreme Court, the youngest person ever nominated, and a non-traditional background, Kagan would bring a unique point of view.

Stanford professor and former chair of the American Bar Association's Commission on Women in the Profession, Deborah Rhode, is quoted saying, "If you're not one of the good old boys to begin with, it makes it easier when you see something flat-out wrong to raise your voice." Diversity of backgrounds strengthens debate and helps avoid groupthink in any organization.

So what qualifies a leader? Integrity, professional expertise, informed judgment, and the ability to get things accomplished. Given Kagan's track record, we should believe that she is qualified for the job.

By Amy M. Wilkinson

 |  May 12, 2010; 11:39 AM ET
Category:  Leadership Save & Share:  Send E-mail   Facebook   Twitter   Digg   Yahoo Buzz   Del.icio.us   StumbleUpon   Technorati  
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It would be wonderful to have a Supreme Court that is more representative of the gender of our actual US population, as long as she has the qualifications. I have confidence that over the coming weeks as she is vetted by the Senate, Kagan's ability for critical analysis, disciplined thinking, and knowledge of the law will prove worthy of the position.

Posted by: lsl777 | May 13, 2010 1:49 PM
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Certainly the precedent for great legal minds to have evolved "off the bench" provides a platform for Kagan's confirmation. Hopefully soon the gender of a jurist will no longer be viewed as reason for diversity but instead as an accepted necessity.

Posted by: melissa_paoloni | May 13, 2010 1:10 PM
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Experience as a judge isn't all it takes to have a sound legal mind. What Kagan accomplished as Harvard Law shows that she'll be an important player in the Court.

Posted by: CodyR | May 12, 2010 3:55 PM
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Great observations. I particularly liked the point about amnesia.

Posted by: Alex-WDC | May 12, 2010 3:53 PM
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Kagan's prior experience designing trial strategy for cases going in front of the Supreme Court is very valuable. (If you want to know how to pitch, you talk to the batters not the other pitchers.) The current court has enough judicial experience in their skill set as a balance. Her leadership skills would be valuable also.

My only hesitation on Kagan’s nomination is being described as a friend of President Obama’s. He and his friends, generally speaking, are strange.

Posted by: Marina8 | May 12, 2010 2:04 PM
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Experience comes in many forms, and I think Wilkinson is on the mark. There isn't necessarily a single "way" that one prepares to be on the Supreme Court. While experience can take many forms, we also see in this nominee and others (including prior administrations) the apparent belief that only Harvard, Yale, and Columibia are the appropriate institutions to acquire the required legal education. Such concentration of _educational_ experience may not be so good. According to the imperfect US News (http://grad-schools.usnews.rankingsandreviews.com/best-graduate-schools/top-law-schools/rankings) 3 of the top 10 law schools are public, so I would think others would be out there.

Posted by: ofritz | May 12, 2010 1:44 PM
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Judging experience is plainly a relevant point to evaluate here, but it's clearly not the only one or even the most important one. Justice Sotomayor had lots of experiencing judging, including -- critically -- at the trial level. Yet all we heard about was the "wise latina" thing. With Kagan, detractors can and will point to a lack of judicial experience, but only because she is so plainly competent and qualified for the position that there's nothing else to focus on!

Posted by: smcgonig | May 12, 2010 12:26 PM
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Definitely to diversity. Interesting to know that her experience is THAT different from former effective justices.

Posted by: JulieAK | May 12, 2010 12:25 PM
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It would be a welcome step in the right direction to have three women simultaneously serving on the court. Wilkinson's argument about diversity of background being an asset to the bench is timely and important.

Posted by: lisaahayes | May 12, 2010 12:23 PM
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