The chief complaint from Republicans about Elena Kagan is that she has never served as a judge and therefore lacks judicial experience. Aside from the ironic fact that Ms. Kagan was nominated to serve as a circuit court judge by President Clinton in 1999 and the Republican Senate refused to act on her nomination, not having donned the robes hasn’t been a hindrance to previous members of the club.
Dozens of Supreme Court justices had little or no judicial experience before taking the bench. William Rehnquist and Earl Warren—two of the past four chief justices—had never served as judges before being appointed. Both were nominated by Republican presidents. Former Chief Justice John Marshall, frequently referred to as the “great chief justice,” and former associate Justices Louis Brandeis and Felix Frankfurter also had no judicial experience at the time of their Supreme Court appointments.
It appears that the GOP’s frustration stems from the fact that they’re not going to be able to throw around the epithet “activist judge” this time around.