Kagan’s Lack Of Judicial Experience Not A Problem For Scalia

Antonin Scalia is not bothered in the least by the fact that Supreme Court nominee Elena Kagan has never served as a judge, and in fact seems to believe it might actually be a good thing:

Supreme Court nominee Elena Kagan’s lack of judicial experience got a high-profile defense Wednesday night from a prospective colleague: Justice Antonin Scalia.

Scalia said the court would benefit from having someone who has not been a judge.

“Currently, there is nobody on the court who has not served as a judge — indeed, as a federal judge — all nine of us,” he told an audience at Catholic University’s Columbus School of Law. ” . . . I am happy to see that this latest nominee is not a federal judge — and not a judge at all.”


Scalia has said previously that he doesn’t believe judicial experience is a prerequisite, and that when he joined the Supreme Court, three of his colleagues had never served on the bench.

Scalia has also been friendly with Kagan in the past. He alluded to that last week, when he and Justice Stephen G. Breyer testified before a congressional committee on administrative law.

That last comment seems to be a reflection of the fact that the Supreme Court has not fallen victim to some of the same partisan bitterness that infects much of the rest of official Washington. It may seem surprising that Antonin Scalia and Ruth Bader Ginsburg, who are polar opposites on the Court in almost every respect, are actually fairly close friends, but that just strikes me as a reflection of the fact that the Court has managed to maintain a level of collegiality and respect among peers that has been missing in the political side of Washington for many years.

As for Kagan, Scalia is correct of course and I would imagine that comments like this will manage to sway several Republicans to vote for her in the end.

FILED UNDER: Law and the Courts, Supreme Court, US Politics, , ,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. sam says:

    Kagan’s Lack of Judicial Experience Not a Problem for Scalia

    That’s because he hasn’t spoken to Drew.

  2. Anderson says:

    Circumstantial evidence that Scalia doesn’t believe Kagan is gay — he wouldn’t make a favorable comment about her otherwise?