Is it true that Brett Kavanaugh never tried a case as a judge?

A meme claims Brett Kavanaugh was a law clerk who had never tried a case as a judge before he was appointed a judge by George Bush. Is this true?

I don’t think he was ever a trial judge. Not too unusual, but it would be good experience.

Maybe what you’re referring to is he never tried a case as a lawyer. As far as I know, that’s true. Not disqualifying by itself, but it is a mark against him (one of many)

It appears to be true, but unremarkable. Elana Kagan’s first position as a judge was on the Supreme Court. Many respected legal scholars never served as judges until they were appointed to a federal court position.

I think there’s something mixed up in the question, because I don’t think it makes sense.

But, it is true that Kavanaugh was never a trial judge (state or federal).

It is also true that he was never a trial lawyer. He did serve one year as a fellow in the Solicitor General’s office and a couple of years in private practice between government jobs. It is possible that he tried a case during that time, but I don’t know. It’s not very likely.

And Obama had never been an executive in charge of anything before he became POTUS, so what’s the point of the meme?

And Trump had even less experience than Obama – like, zero – in government.

The point of the meme is that a Supreme Court justice is, or should be, assumed to have some sort of relevant experience judging cases.


He has been a Federal district judge for the last 12 years, presiding over federal cases. Or are you saying that he should have been doing mock trials in high school instead of drinking beer and lifting weights?

No, he is a Federal Appeals Court judge, hearing appeals of federal cases. It’s relevent experience for the Supreme Court, but it is not trying case.

It’s not that unusual. Elena Kagan was a law professor who never served as a judge. Bill Clinton nominated her for a federal judgeship in 1999, but there was never a vote on her confirmation. In fact, Kagan had very little (some cites say none) trial experience until Obama named her as Solicitor General in 2009. when she finally got substantial time actually arguing cases.

Arthur Goldberg had never been any kind of judge until John F. Kennedy appointed him to the Supreme Court. Nor, for that matter, had Abe Fortas, who succeeded Goldberg on the Court. Nor had William Rehnquist when Nixon appointed him to the Supreme Court in 1971. (Rehnquist, of course, was later named Chief Justice.) There are other examples, but you get the idea.

Now, I’m really confused about your question. Kavanaugh has been federal judge since 2006. At 12 years, this gives him significantly more “judging” experience before nomination to the Supreme Court than John Roberts (2 years) or Elena Kagan (0 years). And pretty much exactly in line with Gorsuch (11 years), Ginsburg (13 years), Breyer (14 years), or Kennedy (13 years).

The only sitting Supreme Court justice who was ever a trial judge was Sotomayor, who was a district judge for ~6 years.

None of the above were ever a judge before they became a judge (still an odd question) and, other than Sotomayor, none of them was ever a judge before becoming an appellate judge.

I agree. There are good reasons to question Kavanaugh’s fitness for a position on the Supreme Court but there’s no grounds to question his professional qualifications.

Actually ”most supreme court justices have lacked prior judicial experience”. For instance, Chief Justice William Rehnquist’s only prior judicial experience was his 13 years as an Associate Justice on the Supreme Court.

The Supreme Court of the United States is largely an appellate court with some additional judicial review responsibilities. I believe that the only actual trials the court presides over are Senate trials over officials who have been impeached by the House, and that is only the Chief Justice. So the Supreme Coiurt never goes through the mechanics of a normal criminal or civil trial process, and frankly most of what the justices do is review petitions for writs of certiorari, select what cases they chose to hear, listen to oral arguments, and publish decisions and opinions the work of which is actually mostly done by law clerks (of which Kavanaugh was one for Anthony Kennedy from 1993 to 1994, and applied but was rejected for Reinquist).

There are good reasons to question Kavanaugh’s experience and integrity, but his not having served as a trial judge is hardly unusual or disqualifying.


The question is whether the meme is true, or false. That is all.

Though the answers here put it into context.

There was a hearing for a federal judgeship in the senate a few months ago (year ago?) where one of Trump’s nominees was asked some very basic questions about trial law procedure and rules. Since he’d spent all his time outside the court, writing briefs etc. as a corporate lawyer, he flubbed some stuff that one lawyer said was “first year law school material”. Eventually the guy withdrew. However, as others have pointed out, whatever his other issues Kavanaugh has spent 12 years on the appeal court doing essentially a similar job to the Supreme Court, so the meme as others said is irrelevant.

Well, okay. But I don’t think your meme makes sense. Because I don’t know what “never tried a case as a judge before he was appointed a judge by George Bush” means. He was never a trial judge? He was never a state court judge? I mean most judges aren’t judges before becoming judges. And many (if not most) appellate judges aren’t judges before becoming appellate judges.

So you explain that: “The point of the meme is that a Supreme Court justice is, or should be, assumed to have some sort of relevant experience judging cases.”

Which doesn’t help me understand it at all. Because that makes sense if you’re complaining about, for example, Kagan, who was never a judge of any type before being nominated to the Supreme Court. (A criticism I disagree with).

But it makes no sense when you’re talking about a sitting federal judge who has over a decade of “relevant experience judging cases”. Especially, when I’d be hard pressed to name any Supreme Court justice ever (other than Sotomayor) who had been a district judge… (something that annoys many district judges I’ve talked to).

So (and maybe it’s just me), I don’t understand the connection between the text of the “meme” and what you say the point of the “meme” is.

Its irrelevance is irrelevant. :wink: :stuck_out_tongue:

I want to be clear on something: I will often ask questions to which I am looking for a factual answer. Whether the factually-correct answers support my political or other leanings, or they do not support them, is irrelevant to the question. A datum is either true, or it’s false. Determining which it is is usually my only reason for asking the question.


He asked a legit question.

It is extremely rare for civil cases to go to trial; the vast majority settle or get dismissed on pretrial motions. Criminal cases will go to trial more often.

Given the legal backgrounds they typically come from, I don’t think it’s unusual for S.Ct. Justices not to have tried cases as lawyers. Roberts was always an appellate lawyer. Accounts of Kagan’s career show discovery and motions arguments early on, and later she became an appellate lawyer. Breyer held various government positions, but nothing that would have offered opportunities to try cases. Ginsburg of course was an accomplished appellate lawyer for the ACLU. I have not seen any suggestion that any of them ever tried a case as lawyers.

On the other hand, accounts of Gorsuch’s private practice include arguments at trial. Sotomayor and Alito were criminal prosecutors and very likely tried cases. Thomas started out in the Missouri state Attorney General’s office, and those lawyers tend to get into court more than private attorneys, but I don’t know what his specific duties were. Kennedy had been a small-firm lawyer way back in the 1960s and probably would have had something go to trial.

Sorry> I just meant to point out that the meme implies that because of this Bart O’Kavanaugh is unqualified. (Otherwise, why would the original author bring it up?) He’s never piloted a jet fighter (like GWB) or stayed on a bull for 8 seconds (like some rodeo clown), or…

Perhaps some trial experience might to some extent be relevant, but almost every post here points out that it’s significantly irrelevant to being a Scotus judge.

More troubling is his basic disregard for the rules of perjury; the senate hearings are not like divorce court where everyone seems to lie with impunity…“I never drank any alcohol, your honor, and I never beat the wife or the kids. I was too busy volunteering with the church.” It also is troubling that his own calendar lists the time - July 1st - when a drinking get-together involved all the male attendees listed by Ford, about 6 to 8 weeks before Judge was apparently working at Safeway as she claims. (How would she know the names of people 36 years later unless it was seared in her brain?)

So there are plenty of reasons to feel he should not be approved, but lack of lawyerly qualifications is not one.

I agree regarding trial court experience. I don’t necessary agree more generally. He was pretty unqualified to get this current job 12 years ago. How he’s done in that position, I have no idea.