I’ve long subscribed to Norm Pattis’  trench lawyer movement, predicated upon the belief that it would be really, really useful to have a Supreme Court justice who had some actual experience in the field of endeavor over which he or she presides as ultimate decision-maker,  Now that Elena Kagan, former dean of Harvard Law School, Solicitor General, woman of ambiguous sexuality, has been nominated to the court, and more particularly since she will be the primary focus of discussion for lawyers everywhere for a while, how does she look from the trenches?

Aside from the whole Harvard/Yale thing, and the “third set of breasts on the court” sexist argument, Eric Turkewitz notes from his review of Tom Goldstein’s s 9750 Words on Elena Kagan (more than you ever wanted to know) that the sum total of her legal experience on the ground is

Upon completing her clerkship, in 1988, Kagan went to work as an associate at Williams & Connolly in Washington, D.C.

That ended in 1991, and there are no further details to flesh out what she did at Biglaw aside from warming a chair in the library.  It doesn’t make her a bad person.  It also doesn’t make her experienced in what real lawyers do or what really happens in courtrooms to real people.  Max Kennerly  notes that lack of experience, like an Ivy League education, is a hallmark of our Supremes.

The experiences of Justices Scalia, Thomas, Ginsburg, and Roberts should be discounted. Their work was either for only a few years at the very early part of their career and involved primarily institutional representation (e.g., Monsanto Corporation or the United States itself), or was in a particularly rarefied air, e.g. Supreme Court cases. That leaves us with the “trenches” experience of Justices Kennedy, Alito, and Sotomayor, who together have 34 years of “trenches” experience, compared to the, say, 130–150 years of collective pre-Supreme Court experience on the Court, most of which was policy work for the government or political work for politicians.

You would think that putting nine lawyers in a room, they would have to come up with more than 34 years of actual experience in the trenches.  Nope. Not this bunch.  It must be hard work to find that many lawyers with that little experience.  But, Max asks, “do we need more?”

Most of the time, they’re policy-making politicians like Congress, setting up big generalized rules with which the rest of us must deal. By tradition and by necessity, the Supreme Court rarely sets down useful, unambiguous rules for the benefit of the public. Instead, they reverse or affirm lower courts based on their own views of what the law should be, then justify that decision with sweeping essays about precedent and the public policy of the United States. Given the context in which those essays are created, they’re bound to be vague, self-contradictory, and inscrutable to lower courts.

To put it another way: if someone is going to lose, it’s because the Supreme Court wants them to lose, not because they don’t understand the reality of the law. They don’t care about the reality. That’s the way it has always been and the way will continue to be.

A wee bit cynical, but certainly a fair assessment of the court over the past generation.  From this, Max concludes:

Thus, as much as I would like to see a “trenches” lawyer on the Supreme Court, it’s more important to me that the nominee have sound views on legal policy — sound views on who should win and who should lose — than genuine experience in legal reality. What good is experience in the trenches if the Justice ends up ruling the wrong way anyway?

Here’s where the analysis goes awry.  That we have a Supreme Court bent on political policy making, whether from right or left, without regard to the real life implications of their “vague, self-contradictory, and inscrutable” pronouncements (and let there be no doubt that this Court’s decisions have invariably done more to muddle than clarify, and rested on a “clear” view of life that bears no resemblance to reality in the trenches), the solution isn’t capitulation.  That’s the whole point of the trench lawyer movement.  It’s bad, but it shouldn’t be and doesn’t have to be. 

The disconnect between the politics of the Supreme Court and the reality of the trial court, or more to the point, the life of real people with the misfortune of finding themselves in court, is the wrong that the trench lawyer movement seeks to right.  That presidents and senators pontificate in such a way as to make it politically expedient to avoid any lawyer with actual experience doesn’t mean that putting another theorist (more or less) on the court is the solution. 

There used to be real lawyers on the Supreme Court, but that was before every nominee underwent a political proctology exam, and when the other two branches in Washington played together a little better.  Now that it’s a life and death struggle for political hegemony from two political parties whose members can’t be distinguished without a scorecard, the risk of nominating a real lawyer is far too great.  There might be a tea party, or coffee klatch, or beer bash, because of it.  We can’t take the risk of doing something right.

With the practicalities of politics duly acknowledged, do we just give up and take the best we can push through?  Not to say that Kagan is necessarily the best, or even any good, but she certainly appears to be capable of getting consent of the Senate after the requisite bashing for the television cameras.  Of course, after approval, she could always hire a couple of real lawyer to show her where the courthouse is, explain what lawyers do in there and describe how people who didn’t attend Harvard or Yale are forced to live with her decisions.

Instead, she’s likely to hire a few clerks fresh out of law school.  I wonder what schools they’ll be from?