Justice Antonin Scalia had some kind words on Wednesday evening for President Barack Obama about the current nominee to the U.S. Supreme Court.
During his keynote address at the second annual Judge Thomas A. Flannery Lecture in Washington, Scalia told the several hundred people in the audience that he was “pleased to see the most recent nominee come from outside the federal judiciary and indeed the judiciary as a whole.” Elena Kagan is, of course, the U.S. solicitor general and has never been a state or federal judge.
Noting that all the current members of the Supreme Court came directly from federal circuit courts, Scalia said that the confirmation process has become “so politicized” that presidents have not wanted to take a chance on someone from outside the judiciary.
“When the confirmation process can become derailed by the most minor of details, why would a president want to give the Senate the easy excuse of saying, ‘This nominee has no judicial experience. We don’t want any on-the-job training on the federal bench,’ ” Scalia asked rhetorically.
Moreover, he observed that the same thinking has extended to nominees for lower-court judgeships, so that fewer and fewer federal judges are coming from private practice, law schools or corporate legal departments. Instead, “the people who typically get nominated to the federal bench get promoted right through the system,” he said.
Scalia said that approach was “dangerous” because it follows what he dubbed the “European system.” A primary difference between the common law system in the United States and the civil law systems of many European countries is the nature of the judge, he said.
“In Europe, people go right from a clerkship to a junior judgeship, and they get promoted all the way up to the highest civil bench in that country,” Scalia said. “Can you imagine the kinds of judges that creates? People who have never been in private practice are judges. People who have never sued the federal government are judges. People who have never been on the other side of a case are judges. And each time they’re promoted, it’s by a panel of judges.”
The result, Scalia said, is a judiciary made up of “the ultimate bureaucrats.”
Jeff Jeffrey can be contacted at [email protected].
For more Kagan coverage, see our special report on the nomination.
