Judge Richard Posner vs. Academic Elena Kagan

I have been perusing the paper trail for SCOTUS nominee Elena Kagan, but most of it is mere puffery written for the purposes of a future nomination. I will continue to examine her record and analyze her work (because politicians and the press clearly have more important things to do), but I did come across one gem early.

“Richard Posner is the most important legal thinker of our time, and for generations to come legal scholars will dissect and analyze, will praise and criticize, his distinctive legal vision,” gushed Elena Kagan in 2007. “Rifle through the pages of whatever casebook you have at hand (nearly any subject, common law or statutory, will do) and you will find a grossly disproportionate number of Posner opinions. Perhaps consciously, perhaps not, Judge Posner writes for the casebooks: for two and a half decades, he has produced simply remarkable teaching materials. Love them, hate them, agree or disagree with them, Judge Posner’s opinions make people think -about what the law is doing, about what the law should be doing, about why it all matters. Law professors – actually, anyone who cares about our legal system – should esteem these opinions for this quality.”

Any person with any legal background with an ounce of credibility knows 7th Circuit Appellate Judge Richard Posner to be a brilliant jurist. So why are we not elevating “the most important legal thinker of our time,” in Kagan’s own words, to the most important institution in shaping the law of our land?

Probably because our President has no clue the man exists, despite the fact that both attended Harvard Law School, served as President of the Harvard Law Review (though only one of them published) and accepted teaching positions at the University of Chicago Law School (though only one of them actually was a professor). Shoot, when I put it that way, it sounds like Judge Posner is more qualified to be President (and he was in no way corrupted by Chicago politics).

Judge Posner is certainly as qualified as Elena Kagan to be a Supreme Court Justice. Both clerked for SCOTUS, served in the solicitor general’s office, and taught law at the University of Chicago. But only one has served as a judge for the last 29 years; only one has offered a paper trail of judicial brilliance.

Age should not be a factor, either. Judge Posner is younger than a majority of the court (Stevens, Ginsburg, Scalia, Kennedy and Breyer are all older). His experience as a judge prior to elevation to SCOTUS almost equals that of the most experienced justices prior to elevation (Sotomayor and Alito at 17 and 16 years, respectively). And, much like retiring Justice Stevens, he writes his own opinions.

Now, here is the kicker for all of the trolls on the internets and any liberal that thinks progressives have your interests in mind: he has an issue with the criminalization of marijuana. Your precious “liberal” wing of SCOTUS will always uphold federal law justified under the commerce clause. And if you think the Left in Congress will ever repeal the drug laws, you live in la-la-land. But we already knew that.

Sadly, Judge Posner, one of the most deserving candidates for SCOTUS, will probably never get a nomination from either political party. President Bush tried to convince conservatives that his personal relationship with Harriet Miers was enough to guarantee that she’d have the right opinions. President Obama apparently feels the same way. Forgive me for using salty language, but I’d appreciate it if those people lucky enough to serve this nation as its President didn’t piss down my back and tell me it’s raining.

Kagan does not belong on the court, just as Miers did not belong on the court. At some point – we are going to have to start selecting judges based on their experience, and not on how long they have known the president.