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«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 ...»

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In summarizing the basis for this conclusion, we emphasize that the Committee does not simply express its own view. Rather, as a conduit for the views of the nominee’s peers in our profession, it also expresses the nearly unanimous consensus of the judges, lawyers, academics, and government officials whom we interviewed. This point merits repeating: almost all of the experienced, dedicated, and knowledgeable sitting judges, former solicitor generals from both parties, legal scholars from top law schools across the country, and lawyers who have worked with or against the nominee in government or court describe the nominee as outstanding in all respects and cite specific evidence in support of that view.

Many described her professional competence as “exceptional,” “extraordinary,” “very high,” and “as good as it gets.” Specific comments from a wide array of lawyers and judges

include:

“Her legal skills are ‘remarkable and brilliant, and her analytical skills are balanced., She is a gifted writer.’ Her writing displays a respect for judges and ‘she keeps her points narrow and minimalist, not setting policy, which is the way I think a judge should write.’” * * * 5 Backgrounder at 9.

8 “She is ‘extraordinarily bright, not in a theoretical way.’ She has the ability to ‘deal with issues in a practical and real way.’... She had the ability to quickly comprehend many of the issues and to understand the statutory, legal and litigation aspects that would be impacted. Kagan has a broad knowledge of the jurisprudence coupled with a practical knowledge of the law. She has an ‘innate knowledge of the litigation process and understands how legal arguments translate from the courtroom.’” * * * “Elena is very capable at ‘at the highest level.’... She organizes her thinking in a ‘superior way, super smart and very articulate.’” * * * “Her analytical ability was excellent and ‘as good as he has ever seen.’ She knew what was important and what was not, and she was ‘smart and logical.’” * * * “Elena is ‘exceptionally competent,’ ‘was one of the brightest and best.’... She was rated a ‘10 out of 10 and a star.’ You had total confidence in her work.” * * * “She is an extremely gifted and an exceptionally bright and thoughtful lawyer. “ * * * “She was ‘a real superstar, an excellent writer, a good thinker and a good strategist.’ … Her analytical ability was at the ‘highest order’ and ‘beyond her years.’” Given the breadth, diversity, and strength of this and similar feedback from judges and lawyers of all political persuasions and from so many parts of the profession, the Committee would have been hard pressed to come to any conclusion other than that her demonstrated professional competence is exceptionally outstanding. In this respect, and as is the intention behind our peer review evaluation, the rating communicates much more than the judgment of our fifteen members. With this important thought in mind, we summarize the basis of our conclusion that General Kagan possesses sufficiently outstanding professional competence to be rated “Well Qualified.”

–  –  –

The Standing Committee read the nominee’s scholarly articles, plus representative samples of her other writings, including the briefs she submitted in the cases she argued as Solicitor General, and hundreds of other writings that came to our attention throughout this evaluation process.

In addition, as noted above, we also commissioned three “Reading Groups” to provide us with detailed feedback regarding the degree of professional competence demonstrated in a wide and representative range of the nominee’s writings. The more than 300 pages of close analysis that resulted from the work of these groups were then shared with our entire Committee for its review.

Michael Gottesman, Professor of Law, led the Reading Group of 15 professors at Georgetown. Gregory P. Magarian, Professor of Law, led the 14 professors who participated in the Washington University Reading Group. Thomas Z. Hayward, Jr. and Roberta D. Liebenberg, both former Chairs of this Standing Committee, and Mary A. Wells, a former Standing Committee member, led the Practitioners’ Reading Group, which consisted of 16 distinguished lawyers from around the country with substantial trial and appellate practices. The members of the Reading Groups and the substantive areas of their expertise and review are listed in Exhibits A, B, and C appended to this letter.

Our two law school Reading Groups summarized their conclusions as follows:

–  –  –

“The members of the Washington University reading group strongly and unanimously conclude that Elena Kagan’s writings reflect an exceptional level of professional competence. She consistently writes with intelligence, clarity, and rhetorical force. She thinks through difficult legal questions at a high level of abstraction and with careful attention to detail. Her academic writings demonstrate substantive mastery and theoretical sophistication, and they have

–  –  –

Georgetown University:

“[A] reading of the fifteen reports in the aggregate would support a finding that, in the respects you asked us to focus on – quality, knowledge of the law, clarity, and analytical ability -- Kagan is well qualified to serve on the Supreme Court.





Five say expressly that Kagan is well qualified to be a Supreme Court justice.

Two others say expressly that she is well qualified in the respects you asked us to focus on. Six others provide unqualified praise for the materials they reviewed – either expressly or impliedly declaring those materials consistent with a ‘well qualified’ finding – but decline to provide a global assessment (no doubt because they had not read enough of Kagan’s work, as some of them say). Another reader declares Kagan “professionally competent for the role of Supreme Court Justice.” One professor, while finding the reviewed writings “well written and analytically strong,” criticized the nominee for a “preference for reason over passionate idealism.” Our Practitioners’ Reading Group, while recognizing that it had a smaller body of work

to review, summarized its conclusions as follows:

[T]he substantial majority of the Practitioners Reading Group found that her substantive writings demonstrated keen intellect, command of the legal issues, thoughtful analysis, and clear, skillful writing.

For example, various group members reported:

“Solicitor Kagan’s work reflects a high degree of professional integrity and competence.” * * * “General Kagan demonstrated a solid command of both the factual record and the governing precedent, and she was well prepared to answer all of the questions asked of her.” * * * “She writes well and persuasively, and is an effective oral advocate and a gracious public speaker. I saw no lack of professional competence. To the contrary, she performed each task skillfully.” 11 * * * “Kagan’s law review article is a well-written, sophisticated analysis of complex constitutional law doctrine. Kagan offers an original and creative approach to a set of First Amendment problems. The article showcases her intelligent analysis of the issues, and an ability to think and write both at the broad,

Abstract

level and more specifically about principles applied in particular situations.” * * * The sole dissenter opined that General Kagan’s article on regulation of hate speech is built on unproven premises, and that she “oversimplifies complex issues.” The Standing Committee notes that this is the article that capped the nominee’s pre-tenure work at the University of Chicago, earning her tenure as a full professor. It was reviewed by both the hiring and tenure committees at Harvard Law School. The law school still uses the nominee’s first amendment writings in a class discussing the First Amendment.

The Standing Committee thanks the Reading Groups for their thoughtful and insightful work.

–  –  –

General Kagan has served as Solicitor General for the last year and half. We interviewed lawyers in the Office of Solicitor General, lawyers on the opposing side of her office, lawyers who sought to advocate positions to her office, Supreme Court Justices who observed her argue, and former Solicitor Generals who observed or reviewed her performance to date. The clear picture that emerges is of an outstanding lawyer who confidently and diligently learns fast, masters new roles, and has a remarkable ability to understand and fairly assess numerous complex and important issues, all while fulfilling faithfully her assigned role as lawyer for the United States and a steward of the Office’s reputation.

–  –  –

One issue that we explored was the nominee’s lack of judicial experience. With nominees to the trial bench, the Standing Committee historically looks for substantial courtroom and trial experience, either as a trial judge or trial lawyer. For prospective nominees to the courts of appeals, the Standing Committee places somewhat less emphasis on trial experience. Instead, we look more for an especially high degree of legal scholarship, academic talent, analytical and writing abilities, and overall excellence.

It is these latter qualities that are especially relevant in considering nominees to the U.S.

Supreme Court. 6 Forty justices of the Supreme Court, including 21 of the 59 who joined the Court since 1900, had no prior judicial experience. While prior service as an appellate judge at the state or federal level can certainly provide a nominee with the opportunity to develop and demonstrate the required competencies, so, too, can serving as a practicing lawyer, or as a legal scholar and a teacher, or as Solicitor General. As set forth in the Backgrounder, the Standing Committee has therefore 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. In the case of the Supreme Court, the extensive and in depth writing, research, debate and teaching of broad areas of law may well satisfy the Standing Committee’s criteria for evaluating professional competence. This is particularly true where, as here, the nominee has demonstrated prowess in teaching, brief writing and oral advocacy at the very highest levels.

–  –  –

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, 6 Backgrounder at p. 9.

–  –  –

the Court. The overwhelming view of these judges, lawyers, and academics was that it was important to have on the Court former judges, and it was also important to have on the Court those who had spent their time before joining the Court engaged with the law otherwise, either as practitioners or academics or government officials.

Typical comments include the following:

“As far as this notion of not having a judge’s experience, that is nonsense. There is no reason one needs to have been a judge to be an excellent Supreme Court Justice.” * * * “I do not think the fact that she has not been a judge is a disadvantage for being on the Court. You would not want everyone on the Court to have not been a judge and there should be some lawyers who are familiar with trials, but there should also be some who come at it from a different perspective, particularly if you can get someone as smart as she is.” * * * “I think it is a plus to have some people on the Supreme Court who were not prior judges simply so they bring to bear another perspective on how the law works, how people think about the law and how the law affects people.” * * * “I also do not think that prior service on a court is in any way a requirement for being well qualified to serve on the U.S. Supreme Court.” * * * “Generally speaking, I think it’s very good to have members of the Supreme Court who have been experienced judges and to also have members of the Supreme Court who have not been judges, but who have been intimately involved in the law in other capacities. Here, her involvement as a stellar scholar, a dean of a law school, and lawyer within the upper reaches of the government, is in my view, excellent and sufficient to make someone more than well qualified.” * * * 14 “[As a federal appellate judge], I can weigh-in on the general notion of whether you need to be a judge to serve on the U.S. Supreme Court. My answer is an emphatic ‘no.’ I actually think it is a mistake to have a Supreme Court in which everyone had prior substantial judging experience. My ideal court would have five or six people who have experience as judges, then perhaps a politician, and most certainly a practitioner, and a law professor. I think it is deeply unfortunate that we do not have a practitioner on the Court, someone who really knows how the law is applied in practice. For these reasons, I am thrilled that the President has looked beyond sitting judges to make this appointment. In my view, if you look at filling the particular spot on a particular court, the fact that she is not a judge makes her more rather than less qualified because of what she will bring to the Court that the Court does not have.” * * * “As a sitting judge, I am not at all concerned by the fact that she has not had any experience as a judge. In some ways, judicial experience is less relevant to the Supreme Court than it would be to either our court or a trial court. This is an excellent appointment.” * * * “Based on [personal prior judicial experience], I can say that I am actually pleased to see the President putting someone on the Supreme Court who does not have judging experience, but who has some other experience that demonstrates a deep commitment to the law and a set of skills that a judge does not necessarily have.

Mind you, I think it is important that there be people on the Supreme Court who have judging experience. I just do not think that you end up with the best Supreme Court if all the judges are prior judges.” * * * “I think the notion that you need prior judging experience to be on the U.S.



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