Last night, former Solicitor General Seth Waxman addressed the American Law Institute. He strongly endorsed the nomination of current Solicitor General Elena Kagan to the Supreme Court, stating that "It is and should be a foregone conclusion that she will be confirmed." Waxman told the members of having worked with Kagan in the weeks leading up to the reargument in Citizens United, the Court’s decision striking down Federal limits on certain forms of corporate-financed electioneering, and being impressed with her brilliance.
Although many observers have suggested that Kagan’s lack of judicial experience is a concern, Waxman noted that many of our greatest Supreme Court Justices came to the Court without appellate judging experience, including Robert Jackson, John Marshall Harlan and Earl Warren. Waxman argued that it was important for the Court to have members with the professional experience of learning from a broad cross-section of the country:
Elena Kagan’s experience, although not judicial, will serve the country well.
Waxman also paid tribute to John Paul Stevens, the retiring Justice Kagan may replace. Describing Justice Stevens as a "consummate common law judge," Waxman said that arguing a case before him was both "a rare pleasure and a genuine terror." During his years on the Court, Waxman said that Justice Stevens has been an advocate of "judicial modesty," both substantive — deference to the political branches, and reluctance to use the power to strike down statutes on constitutional grounds — and procedural — a cautious approach to choosing the questions the Court answers, and a strong preference for acting on the narrowest possible grounds. According to former Solicitor General Waxman, judicial modesty "serves the structural balance that’s essential to representative democracy."
On Monday, we reported on the remarks of Justice Stephen Breyer during the opening day of the ALI’s meeting. Video of Justice Breyer’s remarks is now available on the ALI’s website, along with video from several additional speakers.