What Lawyers Do

Elena Kagen, the well-respected Dean of Harvard Law School, has been nominated to be Solicitor General in the Obama administration. But is she qualified seeing that she has never argued a Supreme Court case, or for that matter, a single appellate case?

An article published in Legal Times discusses this issue and includes interviews with Supreme Court veterans and former SG’s who mostly believe that it doesn’t matter much.

Hey, long-time Manhattan District Attorney Robert Morgenthau has never tried a case. And did you know that the former head of FEMA, Mike Brown … well, never mind.

But whether her lack of experience dishing up arguments before appellate judges matters makes for interesting discussion. 

Having argued before appellate courts, I can understand the viewpoints of the interviewees. Conducting oral argument essentially involves the ability to be 1) intelligent, 2) articulate, and 3) able to think on one’s feet. It does not, in other words, require well-honed skills with which seasoned trial lawyers are equipped and are cultivated over a period of time. For example, oral argument before an appellate court can be learned more quickly and more easily than the art of cross-examining a defendant doctor. And no one would claim that the most intelligent law professor could try a case with the same skill as a leading trial lawyer.

As a professor and dean of Harvard Law, Kagan has engaged in public discussion and no doubt verbally jousted with legal brainiacs. And given her position and how much respect she has garnered at HLS, she is no doubt a brainiac herself. She is ready to stand in front of the Supremes. Or so the argument in her favor goes.

Yet, normally for such a high-powered professional position you assume there is some relevant past experience. Imagine you are the president of a corporation and a very important case involving your business is going to the Supreme Court. It’s hard to imagine you wouldn’t hire an advocate who has been before that court at least once and wouldn’t consider a rookie. The SG is in charge of the Supreme Court cases involving the government and is often expected to argue the most important ones. Applying the same logic, don’t you want an SG who has been in the trenches?

It was said in the article that the SG has experienced staff to rely on. But there is a learned art to drafting briefs that, no matter how bright you are, only comes with experience. Wouldn’t you want your SG to have that experience? To be the most competent in that area instead of having to rely on underlings.

On the flip side, the SG does not spend all of his or her time drafting briefs and arguing before the Supreme Court. Maybe being an seasoned appellate advocate, therefore, is not of utmost importance. Kagan apparently has been very successful at the helm of HLS. Maybe that quality would serve her well as SG. After all, she will be in charge of the office. On the other hand, someone with no people skills or any idea how to run an organization, no matter how good he or she performs at oral argument, could be a disaster if put at the helm of the SG’s office.

All in all, I say Kagan is probably a good pick. Will she turn out to be a good SG? Only time will tell.