As Elena Kagan was nominated for the Supreme Court by President Obama yesterday, the debate began over the importance of a Supreme Court nominee having served as a judge before coming to the Court.
Every member of the present Supreme Court has been a Court of Appeals Judge, and one would think this was normal tradition and a requirement, neither of which thought is true in fact!
When one examines the history of the 111 Supreme Court Justices we have had to this moment, we discover a very different truth. Only 48 served as judges on the national or state levels. Three were Governors of their states (Earl Warren, Charles Evans Hughes, William Paterson). Seven have been Senators, including Hugo Black and Edward White. Seven have been Attorney General under a President. We have also seen other cabinet members–Secretary of State, Secretary of the Treasury, Secretary of the Interior, Secretary of Labor, Secretary pf the Navy, and even Postmaster General, chosen for the Supreme Court. Additionally, we have had a number of Solicitor Generals (the position Kagan holds), and Law School professors selected. But also interesting is many who are simply described as “Lawyers”!
The point is that many of the very best Supreme Court Justices have NOT been judges before coming to the high bench. This list includes John Marshall (Secretary of State), Joseph Story (Speaker of the Massachusetts House), Roger Taney (Lawyer), Edward White (Senator), Charles Evans Hughes (Governor), Louis Brandeis (Lawyer), William Howard Taft (President and Law School Professor), Harlan Fiske Stone (Attorney General), Hugo Black (Senator), William O. Douglas (SEC Chairman), Felix Frankfurter (Law School Professor), Frank Murphy (Attorney General), Robert H. Jackson (Attorney General), Tom Clark (Attorney General), Earl Warren (Governor), Arthur Goldberg (Secretary of Labor), and Thurgood Marshall (Solicitor General)!
When one analyzes this list, it is clear that it is not required or necessary that a Supreme Court nominee have had experience as a judge at any level. Worldly experience in other types of positions is important to promote diversity on the Court, beyond the issues of race, religion and gender!