Ridiculous Argument of the Week

On Monday, President Obama nominated Elena Kagan, the current Solicitor General, to replace the retiring Justice John Paul Stevens on the United States Supreme Court. One of the concerns that Republicans have voiced regarding Kagan is her lack of judicial experience. For example, Sen. John Cornyn (R-TX) released a statement which specifically described Kagan as "a surprising choice" due to the fact that she has never previously served as a judge. Cornyn continued by claiming that "Most Americans believe that prior judicial experience is a necessary credential for a Supreme Court Justice".

Before we examine Cornyn's absurd remarks, let's take a close look at Kagan's current role. According to the web site for the Department of Justice, the United States is involved in approximately two-thirds of all cases on which the Supreme Court decides the merits each year. That same web states that "The task of the Office of the Solicitor General is to supervise and conduct government litigation in the United States Supreme Court...The Solicitor General determines the cases in which Supreme Court review will be sought by the government and the positions the government will take before the Court." The Solicitor General is also responsible for presenting the "oral arguments before the Supreme Court".

Other than the actual justices, the Solicitor General is considered to be among the most influential and knowledgeable members of the legal community in regards to Supreme Court litigation. Four Solicitors General have eventually served on the Supreme Court: Robert Jackson, Stanley Reed, Thurgood Marshall and William Howard Taft (who was Chief Justice and a future President of the United States). Two current members of the Supreme Court have held other positions within the Office of the Solicitor General. Chief Justice John Roberts served as the Principal Deputy Solicitor General and Justice Samuel Alito as an Assistant to the Solicitor General, both during the administration of President Ronald Reagan.

But despite all of the information included in the previous two paragraphs, Cornyn still delivered his asinine statement on Kagan's qualifications. However, Cornyn's opinions on the train wreck candidate otherwise known as Harriet Miers are completely different (even though Miers never served as a judge either). Cornyn had this to say in "The Wall Street Journal" about Miers (who withdrew herself from consideration after just twenty-four days): "The court is full of justices who served as academics and court of appeals judges before they were nominated to the bench. What the court is missing is someone who understands the consequences of its decisions on the American people." And the exact same argument that Cornyn uses to defend Miers ironically can apply to Kagan: "41 of the 109 justices who have served on the Supreme Court had no judicial experience at all when they were nominated. These include several luminaries from the school of judicial restraint, including the late Chief Justice William Rehnquist", Chief Justice John Marshall and Justice Louis Brandeis.