President Obama’s nomination of Elena Kagan for the Supreme Court comes as no surprise.  I’m working on an op-ed already so I’m not going to go into it too much here, but I wanted to touch briefly on one aspect of the nomination: her lack of any judicial experience whatsoever.

No doubt this opens up a potential avenue of attack against her nomination, though she is all but certain to be confirmed.  So how important is judicial experience?  It certainly hasn’t always been a requirement, as a total of 40 Supreme Court Justices have been confirmed after being nominated with no prior experience.  Yet the last such example was William Rehnquist, who was appointed by Nixon almost 40 years ago.

The practice of appointing Supreme Court members without judicial experience has gradually declined since the nation’s founding, when it was quite common.  It’s only natural that the judiciary would institutionalize over time, forming a standard career path or expected procession for judicial nominees. Due to this, the nomination of an Elena Kagan has become somewhat unusual.

I don’t think that fact necessarily means she’s not qualified. There’s a usefulness to the kind of institutionalization the judiciary has experienced and most of the time it ought to be respected, but it’s also easy for such institutions to become insular and stale. A nominee who has not proceeded along that expected institutional path, in other words, might well have a fresh perspective to offer. Regardless of judicial experience, the most important qualifier should continue to be a nominee’s demonstrated fidelity to the Constitution.