Kagan Unqualified To Be on Court

by Rep. Ted Poe


The new Supreme Court pick, Elena Kagan, has never been a judge. She's never seen a courtroom from the bench. She's never had a judge's responsibilities. Elena Kagan has never instructed a jury or ruled on a point of law—any point of law. She's never tried a criminal case, a civil case, or even a traffic case. She has not decided even one constitutional issue.

We don't know whether or not she believes the Constitution is the foundation of American law or whether she thinks, like many, the Constitution constantly changes based upon the personal opinions of Supreme Court justices. But either way, Elena Kagan has never had to make a constitutional call in a court of law in the heat of a trial.

She has never admitted evidence or ruled out evidence or ruled on the chain of custody regarding evidence. She has never made even one decision regarding any rule of evidence. She has never ruled on the exclusionary rule, the Miranda doctrine, an unlawful search and seizure allegation, a due process claim, an equal protection violation or any constitutional issue.

She has never impaneled a jury. She has never instructed a jury on a reasonable doubt or sentenced a person to the penitentiary. She has never had to decide whether a witness was telling the truth or not. As a judge, she has never heard a plaintiff, a defendant, a victim, or a child testify as a witness. She has never made that all-important decision of deciding whether or not a person is guilty or not guilty of a crime.

She has never ruled on a life-or-death issue.

Elena Kagan has never made a judgment call from the bench—not a single one. Yet, as a Supreme Court justice, she would be second-guessing trial judges and trial lawyers who have been through the mud, blood and tears of actual trials in actual courts of law. How can she possibly be qualified to fill the post of a Supreme Court justice?

Kagan is an elitist academic who has spent most of her time out-of-touch with the real world and with the way things really are. Being a judge would be an exercise to the new Supreme Court nominee. She has read about being a judge in books, I suppose. She might even have played pretend in her college classroom, but she has never held the gavel in a courtroom. Her first time to render judgment should not be as a member of the United States Supreme Court.

Aside from never being a judge, she has never even been a trial lawyer. She has never questioned a witness, argued a case to a jury or tried any case to any jury anywhere in the United States. Real-world experience makes a difference. Reading books about something and actually doing it are two completely different things.

People's lives and livelihoods are at stake in these courtroom decisions, particularly when they reach our highest court. Courtroom experience is fundamental to being a judge on the Supreme Court. As anyone who has been through the court system can testify, a courtroom is a whole different world.

Putting Elena Kagan on the United States Supreme Court is like putting someone in charge of a brain surgery unit who has never done an operation. She may be qualified for the classroom, but she is certainly not qualified for the courtroom. She should stay in the schoolhouse since she has never been in trial at the courthouse. The Supreme Court is no place for on-the-job training.

And that's just the way it is.


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Mr. Poe represents the 2nd District of Texas. He previously served as a judge in Harris County, Tex.