REPORT: Kagan's legal experience comparable to Rehnquist, Thomas, Roberts

Right-wing media have claimed that Solicitor General Elena Kagan has insufficient experience to be a Supreme Court justice. In fact, Kagan's legal experience is comparable to that of several recent conservative justices at the time of their nominations: William Rehnquist, Clarence Thomas, and John Roberts.

Kagan's legal experience comparable to conservative justices

Right-wing media falsely claim Kagan is “unqualified.” In a May 10 article, the right-wing website Newsmax wrote: “Rush Limbaugh attacked President Obama's nomination of Elena Kagan for the Supreme Court, calling her a 'liberal elitist' who is unqualified for the court and has no clue about how ordinary Americans live.”

But at least 38 justices -- including Rehnquist -- had no judicial experience before being nominated to the Supreme Court. While right-wing media have objected to the fact that Kagan has not previously served as a judge, University of Virginia government professor emeritus Henry J. Abraham has found that 38 justices -- more than a third of the 111 who have served on the Supreme Court -- had no prior judicial experience.'s Supreme Court Center similarly reports that 40 justices had no prior judicial experience. Rehnquist and Earl Warren -- two of the past four chief justices -- had never been judges before their original appointments as justices. Both were nominated by Republican presidents.

Thomas and Roberts had little judicial experience before being nominated to Supreme Court. Clarence Thomas had served as a judge for 16 months and John Roberts had served for roughly two years at the time they were nominated to the Supreme Court by Republican presidents.

Kagan's legal experience is comparable to that of Rehnquist, Thomas, and Roberts at the time of their nominations. Kagan has 23 years of legal experience (after law school). Rehnquist had 20 years of legal experience at the time of his nomination. Thomas had 17 years of legal experience at the time of his nomination. Roberts had 26 years of legal experience at the time of his nomination. None had served more than two years as a judge.


The above chart was compiled using the following biographical information:

William Rehnquist

1952 LL.B., Stanford
1952-1953 Law clerk for Justice Robert H. Jackson
1953-1969 Private law practice in Phoenix, AZ
1969-1971 Assistant Attorney General of Office of Legal Counsel
1971 Nominated by President Nixon to the Supreme Court (later elevated to chief justice by President Reagan)

Clarence Thomas

1974 J.D., Yale University
1974-1977 Missouri Assistant Attorney General
1977-1979 Attorney with Monsanto Company in St. Louis
1979-1981 Legislative Assistant for Sen. John Danforth (R-MO)
1981-1982 Assistant Secretary for the Office of Civil Rights in the U.S. Department of Education
1982-1990 Chairman of U.S. Equal Employment Opportunity Commission
1990-1991 Judge on the U.S. Court of Appeals for the D.C. Circuit
1991 Nominated by President George H.W. Bush to the Supreme Court

John Roberts

1979 J.D., Harvard University
1979-1980 Law Clerk for Judge Henry Friendly on the U.S. Court of Appeals for the 2nd Circuit
1980-1981 Clerked for then-Associate Justice William Rehnquist
1981-1982 Special Assistant to the U.S. Attorney General
1982-1986 Associate Counsel to the President
1986-1989 Private law practice (associate at Hogan & Hartson)
1989-1993 Principal Deputy Solicitor General in the U.S. Department of Justice
1993-2003 Private law practice (partner at Hogan & Hartson)
2003-2005 Judge on the U.S. Court of Appeals for the D.C. Circuit
2005 Nominated by President George W. Bush to the Supreme Court

Elena Kagan

1986 J.D., Harvard University
1986-1987 Law clerk for Judge Abner Mikva of the U.S. Court of Appeals for D.C. Circuit
1987-1988 Law clerk for Justice Thurgood Marshall
1989-1991 Private practice (associate at Williams & Connolly)
1991-1995 Professor at University of Chicago Law School
1995-1996 Associate White House Counsel
1997-1999 Deputy Assistant to the President for Domestic Policy
1999-2001 Visiting professor at Harvard Law School
2001-2003 Professor at Harvard Law School
2003-2009 Dean of Harvard Law School
2009-Present U.S. Solicitor General
2010 Nominated by President Obama to the Supreme Court

Conservatives, legal experts, journalists agree: Kagan is qualified

Reagan Solicitor General Charles Fried endorsed Kagan's nomination, describing her as “supremely intelligent,” “an effective, powerful person,” “and a very hardworking and serious person.” The Huffington Post reported on April 9 that Charles Fried -- solicitor general during the Reagan administration -- “said that he'd support a Kagan pick.” Fried reportedly said: “She is a supremely intelligent person, really one of the most intelligent people I have encountered, and I have met a lot of them, as one does in this business. She is very adroit politically. ... She has quite a strong personality and a winning personality. I think she's an effective, powerful person and a very, very intelligent person, and a very hardworking and serious person.” Fried reportedly added that Kagan was “not ideological” and advised Republicans to support her.

Bush judicial nominee Estrada: Kagan is “a rigorous lawyer” who “should be confirmed” as the next Supreme Court justice. A May 10 New York Times article quoted Bush judicial nominee Miguel Estrada endorsing Kagan for Supreme Court justice:

“I would think that the president is looking for a bona fide left-of-center candidate with a progressive personal outlook who is a rigorous lawyer -- and he hit pay dirt,” said Miguel Estrada, who was nominated to a federal appeals court by President George W. Bush but was never confirmed. “She's highly capable and should be confirmed.”

Fox's Bream: Kagan has a “fantastic resume.” During Fox News' breaking Supreme Court coverage, reporter Shannon Bream predicted that “no one will argue anything [against Kagan] but that she is a brilliant individual, she's got a fantastic resume, and she is known to be a consensus builder.”

Fox's Napolitano: Kagan's “credentials are impeccable.” On the May 10 edition of Fox News Radio's Brian & The Judge, Fox News senior judicial analyst Andrew Napolitano said that Kagan's “credentials are impeccable.”

Fox legal analyst Wiehl: Kagan “an absolute gem” with “excellent qualifications.” In a May 10 opinion piece, legal analyst Liz Wiehl wrote that she found Kagan “to be an absolute gem,” and added: “Some will question her lack of judicial experience, but that perceived prerequis[i]te is relatively new...don't forget Justice Warren (of the Warren court) was never a judge before ascending to the Court. At Harvard, she was known as an avid listener, who could get to the heart of the matter with a measure of both logical analysis and compassion. Sound like excellent qualifications to me.”