Here Comes Associate Justice Elena Kagan; Sorry, Judge Wood, There is Always the ICJ

Here Comes Associate Justice Elena Kagan; Sorry, Judge Wood, There is Always the ICJ

It’s a done deal:  President Obama will nominate U.S. Solicitor General Elena Kagan to the U.S. Supreme Court tomorrow.  Kagan will be the first nominee for the Court since the 1970s who has no judicial experience, although I doubt this will be a problem for her (it may even be an asset).  As Kevin has already noted, Kagan will probably draw fire from the left since she has taken, as Solicitor General, some relatively aggressive stands on matters relating to executive powers in wartime.  Indeed, as the Obama Administration keeps inching toward the Bush Administration’s approach on things (detentions, military commissions, wiretapping, targeted killings, and now, revising Miranda), Kagan may actually shift the court slightly to the right on these questions (I’m guessing she’s most liberal on social issues).  Kagan will almost certainly be confirmed. The only question will be by how many votes.

On the plus side, Judge Diane Wood is now free to consider that other great judicial job opening this spring: member of the International Court of Justice.  Wood is more than qualified for the ICJ, and would be the first U.S. appellate court judge to serve on the ICJ, I believe.  If she would accept such a nomination, it would be great for the ICJ since it would (no offense to past members of the ICJ) immeasureably raise its profile and prestige within the U.S. legal world (then again, this may not be a good thing).  Having been passed over twice for the U.S. Supreme Court, perhaps she would be open to something new?

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Vlad Perju


You are correct that there has never been a federal appellate court judge to serve on the ICJ.  However, Charles Evan Hughes served as a Supreme Court Justice from 1910 to 1916 and then, after an unsuccessful presidential bid, served on the Permanent Court of International Justice from 1928 to 1930.  He resigned from the PCIJ when he was appointed by Hoover to be Chief Justice of the United States.

Roger Alford


Kagan is the first nominee since Harriet Miers in 2005 to have no judicial experience prior to her nomination.  If confirmed, she will be the first *appointee* to the Court with no prior judicial experience since Rehnquist and Powell in the early 1970s.