«ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES before the COMMITTEE ON THE JUDICIARY UNITED STATES SENATE JULY 1, 2010 Mr. Chairman and ...»
KIM J. ASKEW
STANDING COMMITTEE ON THE FEDERAL JUDICIARY
AMERICAN BAR ASSOCIATION
THE HONORABLE ELENA KAGAN
ASSOCIATE JUSTICE OF THE SUPREME COURT
OF THE UNITED STATESbefore the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATEJULY 1, 2010
Mr. Chairman and Members of the Committee:
My name is Kim J. Askew of Dallas, Texas, and it is my privilege to chair the American Bar Association’s Standing Committee on the Federal Judiciary. I am joined today by William J.
Kayatta, Jr. of Maine, our First Circuit representative and the lead evaluator on the Standing Committee’s investigation of the Honorable Elena Kagan. We are honored to appear here today to explain the Standing Committee’s evaluation of the professional qualifications of Solicitor General Kagan to be Associate Justice of the Supreme Court of the United States.
President Obama announced his nomination of Solicitor General Elena Kagan to be Associate Justice on May 10, 2010. The Standing Committee began its evaluation that very day and continued its work for the next several weeks. The Standing Committee unanimously concluded that General Kagan merits our highest rating and is “Well Qualified” for appointment to the Supreme Court of the United States.
THE STANDING COMMITTEE’S EVALUATION PROCESSThe Standing Committee has conducted its independent and comprehensive evaluations of the professional qualifications of nominees to the federal bench since 1948. The fifteen distinguished lawyers who make up our Committee come from every federal circuit in the United States. These lawyers each spend between 500 and 1,000 hours per year without compensation conducting the nonpartisan peer reviews of the professional qualifications of all nominees to the Supreme Court of the United States and all federal district and lower appellate courts, as well as the Court of International Trade and the Article IV territorial district courts.
The Standing Committee does not propose, endorse, or recommend nominees. Its sole function is to evaluate a nominee’s integrity, professional competence, and judicial temperament, and then rate the nominee either “Well Qualified,” “Qualified,” or “Not Qualified.” In so doing, 1 the Committee relies heavily on the confidential, frank, and considered assessments of lawyers, academics, judges, and others who have relevant information about the nominee’s professional qualifications.
The Standing Committee’s investigation of a nominee to the Supreme Court of the United States is based upon the premise that the nominee must possess exceptional professional
qualifications. As set forth in the ABA’s Backgrounder:
To merit the Committee's rating of “Well Qualified,” a Supreme Court nominee must be a preeminent member of the legal profession, have outstanding legal ability and exceptional breadth of experience, and meet the very highest standards of integrity, professional competence and judicial temperament. The rating of “Well Qualified” is reserved for those found to merit the Committee's strongest affirmative endorsement. 1 The significance, range, complexity, and nation-wide impact of issues that such a nominee will confront on the Supreme Court demands no less. As such, our investigation of a Supreme Court nominee is more extensive than nominations to the lower federal courts, and procedurally different in two principal ways.
First, Standing Committee members conduct investigations into the nominee’s professional qualifications in every federal circuit in the United States, not only in the resident circuit of the nominee. In accord with our procedures, each Standing Committee member prepared a confidential circuit report, which is included in the comprehensive confidential final report on which the Standing Committee bases its rating.
Second, the Standing Committee commissioned three Reading Groups of scholars and practitioners to review the nominee’s legal writings and supplement the Standing Committee’s own review of the nominee’s writings. Georgetown University Law Center and Washington University in St. Louis School of Law each formed Reading Groups composed of a total of 1 American Bar Association, Standing Committee on the Federal Judiciary What it is and How it Works (“Backgrounder”) at p. 10.
Collectively, these professors have decades of experience not only in teaching and scholarship, but also in law firms, non profit organizations, and state and federal government.
The Practitioners’ Group is composed of nationally recognized lawyers with substantial trial and appellate practices. All of the readers are knowledgeable of Supreme Court practice, and most have briefed and argued cases in the Supreme Court or in the highest state appellate courts or are former law clerks to Justices on the Supreme Court. The Reading Groups are guided by the same standards that are applied by the Standing Committee and independently evaluate the nominee’s analytical ability, clarity, knowledge of the law, application of the facts to the law, and ability to communicate effectively. Each member of each group reduces his or her evaluation to writing, with cited examples, and those written evaluations are then provided to each member of the Standing Committee.
In undertaking its extensive investigation of the professional qualifications of General Kagan, the Standing Committee wrote to invite input relevant to our investigation from 2,453 persons, including all federal district and appellate judges, as well as magistrate judges, Justices of the Supreme Court of the United States, many state judges, lawyers, and community and bar representatives. The Standing Committee solicited input from the lawyers, judges, and additional individuals identified by General Kagan in her Personal Data Questionnaire submitted to this Committee as possibly having knowledge of her professional qualifications. The Standing Committee identified other persons with such knowledge through interviews with lawyers and judges and a review of General Kagan’s writings. We interviewed many who had worked with and against General Kagan in her capacity as Solicitor General, and others who had personally witnessed her oral arguments or read transcripts of those arguments. We interviewed law school
familiar with General Kagan’s scholarship, her work as a law professor, and her service as Dean of the Harvard Law School. We also interviewed Article III judges at each level of the federal judiciary, and lawyers who had worked with her in private practice and at the White House.
We also gathered and reviewed General Kagan’s major writings. To facilitate the Standing Committee’s review of her writings, an intranet site was established containing all of the nominee’s writings that were publicly available, including her law review articles, speeches, briefs filed in cases she handled as an associate, written materials such as letters and emails generated while Dean of Harvard Law School, transcripts of her oral arguments as Solicitor General, and briefs filed by the Office of the Solicitor General under her leadership. Certain materials released by the Clinton Administration were reviewed. The Standing Committee also considered its confidential evaluation conducted in 1999 when General Kagan was nominated to the United States Court of Appeals for the District of Columbia. 2 The Standing Committee followed General Kagan’s career at the University of Chicago and Harvard Law School, and in Washington, interviewing lawyers, professors, staff, and colleagues, in each case specifically searching for all views, negative or positive, regarding her professional qualifications for service on the Supreme Court.
The Standing Committee based its evaluation on these interviews with judges, lawyers, law professors and community representatives from across the United States; on its own reading of the nominee’s major writings; on reports of the three Reading Groups; and on an in-depth personal interview of the nominee that was conducted by our lead investigator, First Circuit representative William J. Kayatta, Jr., and Chair Askew on June 13, 2010. Each member of the 2 In connection with the 1999 evaluation,, a substantial majority of the Standing Committee found her “Qualified” for service and a minority rated her “Well Qualified.”
nominee’s professional qualifications by assessing her integrity, professional competence, and temperament. The Standing Committee unanimously concluded 3 that General Kagan was “Well Qualified” to be Associate Justice of the United States.
The Standing Committee did not base its rating on, or seek to express any view regarding General Kagan’s ideology, political views or political affiliation. It also did not solicit information with regard to how General Kagan might vote on specific issues or cases that might come before the Supreme Court of the United States. Rather, the Standing Committee’s evaluation of General Kagan is based solely on a comprehensive, nonpartisan, nonideological peer review of the nominee’s integrity, professional competence, and judicial temperament.
In evaluating integrity, the Standing Committee considers the nominee’s character and general reputation in the legal community, as well as the nominee’s industry and diligence. 4 The Committee also considers the extent to which there have been any findings of ethical violations or the like by a nominee, of which there have been none relating to General Kagan. She has earned and enjoys an excellent reputation for integrity and outstanding character.
Lawyers and judges uniformly praised the nominee’s integrity. We cite a few
representative comments as follows:
“He believes her professional demeanor is excellent and that she has the highest reputation for integrity. He would give her the highest possible rating to be on the U.S. Supreme Court.” 3 One member of the Standing Committee did not vote because she is a partner at the firm in which the nominee previously worked several years ago.
4 Backgrounder at 3.
* * * “He would rate her Well-Qualified Plus!” * * * “There is no integrity issue. She is ‘straightforward’ and terrific.” * * * “Judge [ ] knows her well and says that her temperament is excellent. She is revered by her students. He has a law clerk who served in Iraq and Afghanistan who wrote a letter in support of Dean Kagan and her position on the military. He says she is very sensitive to these issues and she treated the military students very well. He gives her integrity an A plus.” * * * “There are no integrity or character issues. The Government never took positions that weren’t addressed with the parties; her statements during the meetings were clear, accurate and truthful. He rates her ‘Well Qualified.’ She is ‘about as good as it gets.’” * * * “There are no integrity or character issues. From his personal experience and from what he has heard, she has the highest integrity, forthrightness and honesty.” * * * “Her integrity is impeccable. There is simply no question of her integrity.” * * *
* * * “Her integrity is top-notch. The Solicitor’s General’s office has a strong tradition of wanting the Supreme Court to be certain of its accuracy of information and reliability in the law. She has continued that tradition.” * * * The nominee’s handling of military recruiters at Harvard Law School was raised in the media as a possible basis for criticizing the integrity of the nominee for allegedly treating military recruiters and students interested in the military as second class citizens. Harvard Law School had a long-standing policy denying placement office services to any firm or organization that refused to hire students for reasons including known sexual orientation. She enforced the policy. She did so less forcefully with the military than many in the Law School wished, setting up an alternative channel to provide similar services through a veterans group, and then exempting the military from enforcement of the policy when required to do so in response to the threatened loss of all federal funding for the entire university. In other words, she provided military recruiters with a degree of student access that likely would not have been provided to private employers with similar policies. Our interviews and review of these facts disclosed no evidence that then Dean Kagan demonstrated any type of bias that would cause us to question her integrity under our standards.
On the basis of the foregoing comments and our extensive review as described above, the Standing Committee concluded that General Kagan possesses the integrity required to receive a “Well Qualified” rating.
“Professional competence” encompasses such qualities as intellectual capacity, judgment, writing and analytical abilities, knowledge of the law, and breadth of professional experience. A Supreme Court nominee must possess “exceptional professional qualifications,” including an especially high degree of legal scholarship, academic talent, analytical and writing abilities, and overall excellence. The nominee must be able to write clearly and persuasively, harmonize a body of law, apply the law to the facts, and give meaningful guidance to the trial and circuit courts and the bar. 5 General Kagan’s professional competence is exceptional.