# Elena Kagan should not be confirmed as Justice **URL:** \ **Category:** Great Debates\ **Created:** [July 3, 2010, 4:46am UTC](https://boards.straightdope.com/t/elena-kagan-should-not-be-confirmed-as-justice/545398 "2010-07-03T04:46:37Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [July 7, 2010, 3:19pm UTC](https://boards.straightdope.com/t/elena-kagan-should-not-be-confirmed-as-justice/545398/21 "2010-07-07T15:19:17Z")
> [@Rumor\_Watkins](#): > > Strictly speaking, you’re just plain wrong. > > The defendants were sued under a federal law. Surprise, surprise, that the federal government would have a vested interest in ensuring that federal laws are interpreted in their favor. That would make it completely her job… to file an amicus. My mistake. Why were they sued under federal law? ---
**Author:** ![Rumor\_Watkins](https://avatars.discourse-cdn.com/v4/letter/r/d9b06d/32.png) [@Rumor\_Watkins](https://boards.straightdope.com/u/Rumor_Watkins)\ **Post date:** [July 7, 2010, 3:23pm UTC](https://boards.straightdope.com/t/elena-kagan-should-not-be-confirmed-as-justice/545398/22 "2010-07-07T15:23:23Z")
> [@Really\_Not\_All\_That\_Bright](#): > > My mistake. Why were they sued under federal law? No clue as to their feelings and tactics at play (esp. in regards to them suing/not suing the local government itself), but legally there probably wasn’t an available Iowa civil rights law to sue under and §1983 civil rights suits are very very broad in their scope. It was probably the only way they had a colorable claim to personal liability for the prosecutors’ actions. ---
**Author:** ![Rex\_Goliath](https://avatars.discourse-cdn.com/v4/letter/r/bcef8e/32.png) [@Rex\_Goliath](https://boards.straightdope.com/u/Rex_Goliath)\ **Post date:** [July 7, 2010, 4:19pm UTC](https://boards.straightdope.com/t/elena-kagan-should-not-be-confirmed-as-justice/545398/23 "2010-07-07T16:19:00Z")
Know who else was “just doing their job”? Nazis. ---
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [July 8, 2010, 1:19am UTC](https://boards.straightdope.com/t/elena-kagan-should-not-be-confirmed-as-justice/545398/24 "2010-07-08T01:19:43Z")
Godwin’s Law proven correct, and in just 23 posts. ---
**Author:** ![ralph124c](https://avatars.discourse-cdn.com/v4/letter/r/8797f3/32.png) [@ralph124c](https://boards.straightdope.com/u/ralph124c)\ **Post date:** [July 8, 2010, 1:13pm UTC](https://boards.straightdope.com/t/elena-kagan-should-not-be-confirmed-as-justice/545398/25 "2010-07-08T13:13:04Z")
How can you make someone who has NEVER been a judge, into a SCJ? She might be OK at writing books, but no actual experience? Oh well, the president had no actual experience…and look how well things are going!:mad: ---
**Author:** ![DSeid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dseid/32/20194_2.png) [@DSeid](https://boards.straightdope.com/u/DSeid)\ **Post date:** [July 8, 2010, 1:25pm UTC](https://boards.straightdope.com/t/elena-kagan-should-not-be-confirmed-as-justice/545398/26 "2010-07-08T13:25:40Z")
> [@ralph124c](#): > > How can you make someone who has NEVER been a judge, into a SCJ? Like [this.](http://www.msnbc.msn.com/id/37072697/ns/politics-supreme_court/) > [@](#): > > John Marshall, William Rehnquist, Louis Brandeis, Earl Warren, William O. Douglas, Harlan Fiske Stone, Robert Jackson, Felix Frankfurter, Joseph Story and Roger Taney. > This roster of Supreme Court justices — rated by legal experts and historians as among the greatest or most influential jurists in the court’s history — had one thing in common with Supreme Court nominee Elena Kagan: None had ever served as a judge prior to becoming a justice on the nation’s highest court. > Every member of the current court served as a federal appeals court judge immediately prior to being appointed to the high court. And Americans have gotten used to thinking this is normal or even mandatory. It isn’t. Forty of the 111 men and women to serve on the high court since 1789 had no judicial experience. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [July 8, 2010, 1:38pm UTC](https://boards.straightdope.com/t/elena-kagan-should-not-be-confirmed-as-justice/545398/27 "2010-07-08T13:38:27Z")
> [@ralph124c](#): > > Oh well, the president had no actual experience..and look how well things are going!:mad: Quite well? ---
**Author:** ![Rumor\_Watkins](https://avatars.discourse-cdn.com/v4/letter/r/d9b06d/32.png) [@Rumor\_Watkins](https://boards.straightdope.com/u/Rumor_Watkins)\ **Post date:** [July 8, 2010, 3:41pm UTC](https://boards.straightdope.com/t/elena-kagan-should-not-be-confirmed-as-justice/545398/28 "2010-07-08T15:41:24Z")
> [@ralph124c](#): > > How can you make someone who has NEVER been a judge, into a SCJ? > She might be OK at writing books, but no actual experience? > Oh well, the president had no actual experience..and look how well things are going!:mad: the kind of judging that a trial court judge does is very different than the kind of judging that an appellate court judge does. the kind of judging that an (intermediate) appellate court does is very different than the kind of judging that a supreme court judge does. most of the “legal” stuff the supreme court judges base their opinions on are either handed to them by the parties in the brief, or is researched ad nauseum by their law clerks. the judges (basically) digest all of the information, apply their particular brand of legal philosophy to the problem, and come up with a hopefully cogent reason for the way they want to rule. hearing an abuse case in the local juvee courtroom isn’t going to give you much preparation for this. (in fact, you could make a good argument that lawyers who have been exposed to far more “academic law” as of the type found in law schools are better prepared to philosophize about the law than your came-up-through-the-ranks-of-judgedom judge) ---
**Author:** ![Camus](https://avatars.discourse-cdn.com/v4/letter/c/ba8739/32.png) [@Camus](https://boards.straightdope.com/u/Camus)\ **Post date:** [July 8, 2010, 9:11pm UTC](https://boards.straightdope.com/t/elena-kagan-should-not-be-confirmed-as-justice/545398/29 "2010-07-08T21:11:26Z")
> [@Rumor\_Watkins](#): > > the kind of judging that an (intermediate) appellate court does is very different than the kind of judging that a supreme court judge does. Why? Courts of Appeal and the Supreme Court are both appellate courts, with the US Supreme Court having original jurisdiction over only a very small number of issues. This is the rationale behind having so many judges from the Federal Courts of Appeal being appointed to the US Supreme Court - the jobs aren’t that dissimilar. > [@](#): > > hearing an abuse case in the local juvee courtroom isn’t going to give you much preparation for this. (in fact, you could make a good argument that lawyers who have been exposed to far more “academic law” as of the type found in law schools are better prepared to philosophize about the law than your came-up-through-the-ranks-of-judgedom judge) The type of law found in law schools? You mean case law, which presumably any judge who deals with case law on a daily basis would also be familiar with? ---
**Author:** ![Rumor\_Watkins](https://avatars.discourse-cdn.com/v4/letter/r/d9b06d/32.png) [@Rumor\_Watkins](https://boards.straightdope.com/u/Rumor_Watkins)\ **Post date:** [July 8, 2010, 9:40pm UTC](https://boards.straightdope.com/t/elena-kagan-should-not-be-confirmed-as-justice/545398/30 "2010-07-08T21:40:51Z")
> [@Camus](#): > > Why? Courts of Appeal and the Supreme Court are both appellate courts, with the US Supreme Court having original jurisdiction over only a very small number of issues. This is the rationale behind having so many judges from the Federal Courts of Appeal being appointed to the US Supreme Court - the jobs aren’t that dissimilar. At the appellate level, you’re still dealing with a fair bit of application of law to facts of the specific case. You aren’t as concerned with crafting new rules of law or worrying about the more global aspects of decisions you render because most of the time your decisions don’t deal with that - they’re just more procedural reviews of trial courts. (yes, you are concerned, but also I still think it’s an entirely different concern than when you really are the court of last resort). Contrast this to a SC justice, who all they ever do is create new law. Yes, if 0 is trial court, and 100 is supreme court, intermediate appellate work is far closer to supreme court judging than trial court judging, but it’s still a big difference. I don’t really think there’s much of a rationale or established rules for anything about the supreme court. Your lowest hanging fruit candidates with the most number of data points would be appellate court judges, it’s not really saying anything about there being some “reason” for picking them from that pool apart from tradition and convenience. Especially since 27 or so have been (appointed) since WW2. > [@](#): > > The type of law found in law schools? You mean case law, which presumably any judge who deals with case law on a daily basis would also be familiar with? no, I don’t mean case law. I mean what law professors actually do as their vocation. Most don’t like to teach - they like to philosophize about law and write articles about how the law ought to react to things. ---
**Author:** ![Camus](https://avatars.discourse-cdn.com/v4/letter/c/ba8739/32.png) [@Camus](https://boards.straightdope.com/u/Camus)\ **Post date:** [July 9, 2010, 10:03am UTC](https://boards.straightdope.com/t/elena-kagan-should-not-be-confirmed-as-justice/545398/31 "2010-07-09T10:03:10Z")
> [@Rumor\_Watkins](#): > > At the appellate level, you’re still dealing with a fair bit of application of law to facts of the specific case. You aren’t as concerned with crafting new rules of law or worrying about the more global aspects of decisions you render because most of the time your decisions don’t deal with that - they’re just more procedural reviews of trial courts. (yes, you are concerned, but also I still think it’s an entirely different concern than when you really are the court of last resort). Contrast this to a SC justice, who all they ever do is create new law. This is a pretty broad generalization. Every appellate court decision is going to involve applying the law to the facts of the specific case. Without the facts of the case, there is no justification for re-examining an existing area of the law or charting a new course of law. The US Supreme Court would generally not be facing a legal issue in a case before it if that issue wasn’t already examined and ruled upon one way or another by a court of appeals. Further, quite a bit of Supreme Court cases end up resolving ambiguities in the law, not creating new law. > [@](#): > > no, I don’t mean case law. I mean what law professors actually do as their vocation. Most don’t like to teach - they like to philosophize about law and write articles about how the law ought to react to things. Many of the more famous legal philosophies such as Law and Economics or Judicial Realism are attempting to describe how the court system, and more particularly the judicial process, works and what, if any, are the likely outcomes. Law professors study judges and the law (including their decisions), not the other way around. ---
**Author:** ![Rumor\_Watkins](https://avatars.discourse-cdn.com/v4/letter/r/d9b06d/32.png) [@Rumor\_Watkins](https://boards.straightdope.com/u/Rumor_Watkins)\ **Post date:** [July 9, 2010, 1:48pm UTC](https://boards.straightdope.com/t/elena-kagan-should-not-be-confirmed-as-justice/545398/32 "2010-07-09T13:48:07Z")
> [@Camus](#): > > This is a pretty broad generalization. Every appellate court decision is going to involve applying the law to the facts of the specific case. Without the facts of the case, there is no justification for re-examining an existing area of the law or charting a new course of law. The US Supreme Court would generally not be facing a legal issue in a case before it if that issue wasn’t already examined and ruled upon one way or another by a court of appeals. Yes, it’s a generalization. I’m not suggesting it was anything but. I’m merely suggesting that while an appellate court’s workload (making up numbers here) would be 25% actual (re)interpreting the law/clarifying law/resolving an ambiguity, the other 75% is writing 10 page briefs that saying the trial judge had discretion, and we don’t find that he abused his discretion. Not everything that the appellate court does is a nugget of gold - everything that the supreme court does is, is my point. > [@](#): > > Further, quite a bit of Supreme Court cases end up resolving ambiguities in the law, not creating new law. well that does create new law in itself. > [@](#): > > Many of the more famous legal philosophies such as Law and Economics or Judicial Realism are attempting to describe how the court system, and more particularly the judicial process, works and what, if any, are the likely outcomes. Law professors study judges and the law (including their decisions), not the other way around. yes, which is my point. they study the decisions in the macro perspective far more than a trial court or appellate judge, who is more narrowly focused on the actual case at hand (although does, sometimes, see things at large). they get the benefit of the ivory tower perspective, which has value as a member of a court of last resort. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [July 9, 2010, 2:21pm UTC](https://boards.straightdope.com/t/elena-kagan-should-not-be-confirmed-as-justice/545398/33 "2010-07-09T14:21:54Z")
> [@Rumor\_Watkins](#): > > At the appellate level, you’re still dealing with a fair bit of application of law to facts of the specific case. You aren’t as concerned with crafting new rules of law or worrying about the more global aspects of decisions you render… This raises an interesting question: do we really _want_ judges to consider the global aspects of decisions they render? ---
**Author:** ![monavis](https://avatars.discourse-cdn.com/v4/letter/m/e0b2c6/32.png) [@monavis](https://boards.straightdope.com/u/monavis)\ **Post date:** [July 13, 2010, 11:22am UTC](https://boards.straightdope.com/t/elena-kagan-should-not-be-confirmed-as-justice/545398/34 "2010-07-13T11:22:59Z")
> [@ralph124c](#): > > How can you make someone who has NEVER been a judge, into a SCJ? > She might be OK at writing books, but no actual experience? > Oh well, the president had no actual experience..and look how well things are going!:mad: By the same token…Bush had 8 years experience and look what happened…that is why Obama was elected (in a way). ---
**Author:** ![foolsguinea](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/foolsguinea/32/14751_2.png) [@foolsguinea](https://boards.straightdope.com/u/foolsguinea)\ **Post date:** [July 17, 2010, 3:22am UTC](https://boards.straightdope.com/t/elena-kagan-should-not-be-confirmed-as-justice/545398/35 "2010-07-17T03:22:15Z")
> [@Really\_Not\_All\_That\_Bright](#): > > This raises an interesting question: do we really _want_ judges to consider the global aspects of decisions they render? No. But we do want\* justices\* to do so. 😛 Actually, _yes._ In many cases it is the case in front of a judge that is of overriding concern, but it’s worth considering ramifications, not just “calling balls & strikes” like an algorithm. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 19, 2010, 12:13pm UTC](https://boards.straightdope.com/t/elena-kagan-should-not-be-confirmed-as-justice/545398/36 "2010-07-19T12:13:57Z")
> [@foolsguinea](#): > > No. But we do want\* justices\* to do so. 😛 > > Actually, _yes._ In many cases it is the case in front of a judge that is of overriding concern, but it’s worth considering ramifications, not just “calling balls & strikes” like an algorithm. No, it isn’t. This is an area of disagreement between liberals and conservatives, and I think the view expressed by **foolsguinea** undercuts our notion of what it means to be self-governed. Liberals are all about getting every possible warm-blooded mammal registered to vote, but wish to reserve a special place in government to place unelected, lifetime tenured leaders, philosopher-kings which the voting public cannot practically reach and whose decisions are insulated from direct public review. That insulation is fine when deciding how the law as it exists applies to the facts of a particular case, but when it morphs into “considering global ramifications” then it’s moved into territory that should be reserved to our _elected_ leaders, if our notion of representative democracy is to mean anything. ---
**Author:** ![Peremensoe](https://avatars.discourse-cdn.com/v4/letter/p/ce7236/32.png) [@Peremensoe](https://boards.straightdope.com/u/Peremensoe)\ **Post date:** [July 19, 2010, 12:43pm UTC](https://boards.straightdope.com/t/elena-kagan-should-not-be-confirmed-as-justice/545398/37 "2010-07-19T12:43:54Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Kagan did not argue that prosecutors should be “personally inviolate”, but that the criminal justice system was the correct venue for their comeuppance, not civil suits. Why? Why not have both avenues open, as they would be for so many other maleficients? > [@Camus](#): > > Compared to criminal charges, civil liability is a poor deterrent for this kind of practice. But, the threat of civil lawsuits from every defendant who feels wronged by a prosecutor would be a deterrent for prosecutors from simply doing their jobs. Wait, prosecutors doing their jobs legally and responsibly would be deterred, but the other sort wouldn’t be? I can understand an assertion that both or neither would be affected, but this seems a stretch. And so what if it in fact serves little purpose? Since when are specific avenues of legal action disallowed on the basis of their relative efficiency? Hell, if that were the prevailing standard, a lot of you lawyers would be out of work. Why should prosecutors in _particular_ be given this exemption from civil suits where other officials–who might also piss off a citizen for good or other reasons–are not? ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [July 19, 2010, 2:03pm UTC](https://boards.straightdope.com/t/elena-kagan-should-not-be-confirmed-as-justice/545398/38 "2010-07-19T14:03:26Z")
> [@Bricker](#): > > This is an area of disagreement between liberals and conservatives, and I think the view expressed by **foolsguinea** undercuts our notion of what it means to be self-governed. Liberals are all about getting every possible warm-blooded mammal registered to vote, but wish to reserve a special place in government to place unelected, lifetime tenured leaders, philosopher-kings which the voting public cannot practically reach and whose decisions are insulated from direct public review. Their decisions aren’t insulated at all. If those unelected, lifetime tenured leaders get it truly wrong, we have an amendment process to deal with that. Having said that, I think you’re considerably oversimplifying the issue here. Judges who don’t consider ramifications don’t come up with exceptions like “shouting fire in a crowded theater”; they speak in absolutes. > [@spark240](#): > > Why? Why not have both avenues open, as they would be for so many other maleficients? Because most of those other maleficients aren’t working for _us_. I would have thought that was obvious. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 19, 2010, 2:42pm UTC](https://boards.straightdope.com/t/elena-kagan-should-not-be-confirmed-as-justice/545398/39 "2010-07-19T14:42:10Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Their decisions aren’t insulated at all. Insulated is not a synonym for “immune from.” If it were, my air conditioning bill would be considerably smaller this summer. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [July 19, 2010, 3:05pm UTC](https://boards.straightdope.com/t/elena-kagan-should-not-be-confirmed-as-justice/545398/40 "2010-07-19T15:05:55Z")
It certainly can be. Are you under the impression that your bill would also be smaller if there was extra rubber around electrical cables to keep the current from leaking? [Previous page](https://boards.straightdope.com/t/elena-kagan-should-not-be-confirmed-as-justice/545398.md?page=1) [Next page](https://boards.straightdope.com/t/elena-kagan-should-not-be-confirmed-as-justice/545398.md?page=3)