Kagan Has Appropriate Experience for a Seat on the Supreme Court

Many commentators are questioning the extent of Solicitor General Elena Kagan's experience, noting that, unlike her eight potential future colleagues, she has never served as a judge. They shouldn't. President Obama wanted to nominate somebody outside of the judicial monastery, and Elena Kagan fits the bill. In fact, she's the first non-judge nominated since the 1970s—unless you count Harriet Miers, whose appointment was withdrawn under fire from the right and the left because of her parochial credentials. Unlike Miers, who was a vanity choice by George W. Bush, Kagan brings top-notch academic and practical credentials. And her lack of judicial experience is trumped by the six cases she has argued before the court as Solicitor General.

We've actually gotten to see her in action before the nine robed justices, and for someone who had never argued in a courtroom before, she has excelled.

In the high-pressure oral arguments where she responds to the justices and defends and presses her case, she is the rare attorney who is not excessively deferential to Chief Justice Roberts. She is always polite, of course, but holds her ground to the extent that Roberts's testy questioning of her in return has drawn notice from court watchers. The buzz is that he's threatened by her, or he sees her as his intellectual equal. Either way, that's good for the court, and for the American people.

Her healthy sparring relationship with Justice Scalia has also been on display for all to see. The famously prickly Scalia seems to enjoy the give and take, and that must give heart to President Obama, who remains committed to restoring civil discourse among ideological opposites. Lastly, despite Kagan's lack of traditional courtroom experience, we know enough about her to be confident she will speak her mind if she's confirmed, unlike Justice Thomas, who rarely asks a question and remains a mystery after almost two decades on the court.