Now in Legal Rebels:
Posted Jul 02, 2010 12:13 am CDT
Representatives of the American Bar Association told the Senate Judiciary Committee on Thursday that Elena Kagan received its highest rating because of legal skills that reviewers found “brilliant, gifted, and of the highest level.”
“Our rating of ‘well qualified’ reflects the clear consensus of her peers,” said Kim J. Askew, a Dallas lawyer and the chair of the ABA’s Standing Committee on the Federal Judiciary. “By any measure, Elena Kagan has had an extraordinary legal career.”
Askew was joined by William J. Kayatta Jr., a member of the Standing Committee from Portland, Maine, in presenting the results of the panel’s extensive review of Kagan’s qualifications to join the high court.
On the question of Kagan’s judicial and legal experience, the ABA statement appeared to reply, whether on purpose or not, to criticism of the ABA rating leveled by Sen. Jon Kyl, R-Ariz. In his opening statement on Monday, Sen. Kyl said that he did not see how Kagan could get a “well qualified” rating when she, in his view, lacks the requisite experience in the practice of law.
Askew said in her written statement (PDF) submitted to the Judiciary Committee that serving as “a practicing lawyer, or as a legal scholar and a teacher, or as Solicitor General,” can demonstrate that a nominee has “the required competencies” for the appointment, just as service as an appellate judge can.
“The Standing Committee has … long recognized that other distinguished accomplishments in the field of law other than judging or working as a practitioner, such as teaching law, may be considered in evaluating one’s professional competence,” Askew said.
She said in the statement that the many lawyers and judges with whom the Standing Committee spoke “almost uniformly agreed that a pre-eminent legal scholar who was tenured at both the University of Chicago and Harvard Law School, and then rose to become the dean of Harvard Law School, has in a sense acquired a peculiarly apt and broad understanding of the law that would well serve the Court.”
In response to a question from Sen. Charles E. Schumer, D-N.Y., that alluded to Kyl’s criticism, Askew said that in looking at nominees for appellate courts, including the Supreme Court, her committee looks for such things as a high degree of scholarship, academic talent, and overall excellence.
“She is certainly preeminent in all of those areas,” Askew said.
Sen. Jeff Sessions of Alabama, the ranking Republican on the committee, asked Askew and Kayatta whether they had interviewed any judges before whom Kagan had argued or practiced, knowing that the nominee’s only such experience as been as solicitor general before the Supreme Court.
“I would just say I learned so much more in the practice of law about how this magnificent, beautiful system operates than I did in law school,” Sessions told the ABA representatives. “I do think perhaps the highest rating is not called for.”
The review of Kagan’s experience came under the evaluation’s section on professional competence. The other major parts of the evaluation involved the areas of integrity and temperament.
Amid widespread praise for Kagan’s integrity among the lawyers and judges interviewed by the Standing Committee, Askew’s statement addressed Kagan’s handling of military recruiters while dean of Harvard Law School, which came under sharp criticism from Republicans this week.
“Our interviews and review … disclosed no evidence that then-Dean Kagan demonstrated any type of bias that would cause us to question her integrity under our standards,” Askew’s written statement said.
The statement reflected some negative comments provided to the ABA panel. One professor in a reading group at Georgetown University found Kagan’s scholarly writings “well written and analytically strong,” in the unidentified professor’s words, but showed a “preference for reason over passionate idealism.”
And one member of a practitioners’ reading group criticized a scholarly article Kagan had written about hate speech, saying it was built on unproven premises and that she “oversimplifies complex issues.” But the Standing Committee noted that the article helped Kagan earn tenure at the University of Chicago law school and was reviewed by the hiring and tenure committees at Harvard Law School.
Thursday’s hearings began with two panels of witnesses invited separately by the Democrats and Republicans on the Judiciary Committee.
Republicans brought forth three active or retired members of the U.S. military who sharply criticized Kagan’s handling of the military-recruitment issue.
“In replacing the only remaining veteran on the Supreme Court in Justice John Paul Stevens, how did we reach a point in this country where we are nominating someone who—unapologetically—obstructed the military in a time of war?” said Capt. Peter B. Hegseth, an Army veteran of the Iraq War and currently at student at Harvard’s John F. Kennedy School of Government. “Ms. Kagan chose to use her position of authority to impede, rather than empower, the warriors who fight, and have fallen, for this country.”
Flagg Youngblood, a retired Army captain who said he faced ostracism from some professors and students as a member of the Reserved Officers Training Corps while an undergraduate at Yale University in the early 1990s, said Kagan’s efforts to have Harvard’s law school veterans’ group sponsor recruiters’ visits to the Law School rather than the career-services office could be equated to “separate but equal” segregation.
It was as if Kagan said to the black students seeking to integrate lunch counters in the 1960’s, “’You don’t mind eating in the kitchen, do you?’” Youngblood said.
Sen. Sessions, who questioned Kagan most intensively about the recruiter issue, said the witnesses helped bring “clarity” to the issue.
“This was not a little, bitty matter,” Sessions said.
As they did last year during the confirmation hearings of Sonia Sotomayor, Democrats invited panelists meant to personalize the impact of what they consider recent activist decisions of the court led by Chief Justice John G. Roberts Jr.
Those witnesses were Lilly Ledbetter, whose discrimination case against the Goodyear Tire and Rubber Co. based on being paid less than her male colleagues was quashed by a 2007 Supreme Court decision; Jack Gross, who was on the losing end of an age-discrimination case decided by the high court in 2009; and Jennifer Gibbins, a Cordova, Alaska, resident who testified to the impact of a high court decision that sharply trimmed a punitive damages award against Exxon Mobile stemming from the 1989 Exxon Valdez oil spill.
Several Democratic senators told those witnesses that their presence helped humanize the legal cases often bandied about during the confirmation hearing.
Sen. Kyl, a conservative Republican, referred to those three witnesses and said they represented the “outcomes” that President Obama and the Democrats hoped to achieve through the selection of Kagan for the court.
“A more results-oriented ploy I cannot imagine,” Kyl said.
The Judiciary Committee heard from 24 witnesses on Thursday, with each getting just five minutes to deliver testimony, which could be supplemented by longer written statements. This part of the confirmation ritual, which always features lighter attendance than when the nominee himself or herself is present, felt even more pro forma this time. The session could not begin until 4 p.m., when memorial services for the late Sen. Robert C. Byrd were completed at the Capitol.
And Sen. Leahy himself left the session after less than an hour.
The latest ABAJournal.com coverage of Kagan: