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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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Supreme Court is nonsense. I have known many superb judges who were neither judges nor litigators before they arrived on the bench, yet they were great from the get-go because of their intellect, their understanding of the law, their temperament, their discipline and their energy.” Overall, the praise for General Kagan’s professional competence is supported by the record of her career as a whole. She is a summa cum laude graduate of Princeton, magna cum laude and law review at Harvard, with a master’s in philosophy from Oxford. General Kagan thereafter successfully twice traveled the tenure track at a top law school, once at the University

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years in the White House under President William J. Clinton, she has an understanding of government that some judges may never acquire. As a professor, she taught courses in at least four different subject areas. As a Dean, she was required to study the scholarly work of all tenure candidates and new hires to the faculty at Harvard Law School. As a result, she has a breadth of deep knowledge that few practicing lawyers and judges ever reach. As Dean of Harvard Law School, she demonstrated interpersonal skills and an understanding of how large institutions work and how to build coalitions. As Solicitor General, the proverbial “tenth justice,” she knows more than anyone not now on the Court about the Court’s current docket and decisions.

3. Temperament General Kagan’s temperament is evidenced in part by the fact that she is held in such high regard by so many different people in so many different places. Accomplishing all she did at Harvard Law School required a very difficult and unusual balance of competing views and interests, a strong will, high expectations, listening, sense of humor, and an ability to find common ground. She is uniformly described as compassionate and interested in her students and was accessible to students and faculty. She sets high expectations for herself and others who work with her. She concedes to rare moments of testiness, yet those who work most closely with her are her strongest advocates.

Representative comments we received ran as follows:

“Over time, I noticed that whenever an issue came up that was such that many people, particularly in academia, might take somewhat of a doctrinaire or ideological approach, she seemed to be open-minded and arrive at a very thoughtful and considered judgment that actually fit the facts. She didn’t seem to be the sort of person who quickly labeled a matter and then pre-judged it according to the label.” * * * 16 “The way I would best describe Elena in this context is to describe her as more of a judge than often many judges themselves are. She has an open mind that actively solicits all points of view. If she has any firm decisions or values on the big issues that are now before the court, I do not know what they are and I know her well. I think what that means is that on these very tough issues she simply does not have a categorical position that would be obvious to one who knows her well. She is analytically very smart. I have seen on occasions her change her mind on things after hearing new evidence and arguments. She listens so well that she often has an excellent memory of what people say, so much so that it’s better than what the people themselves have of what they said. She’s a very balanced person generally.” * * * “Her temperament is splendid. She is a fair listener and she respects the opinions of others even if she disagrees with them.” * * * “Elena Kagan was enormously successful as our Dean. I’ve been teaching at the Law School for roughly [ ] years, so I have a pretty good historical overview and pretty good sense of the difficulties involved in running such a demanding institution with so many very demanding people. Elena simply could not have pulled this off were she not quite remarkably talented in terms of her competence, integrity and temperament. Early on as a faculty member she developed a reputation for listening to people and for finding a way to cut to the heart of matters, a place where there was often more agreement than people had anticipated.” * * * “Elena could not have been more successful as Dean. Harvard Law School is an incredibly complex operation, with 2,000 students or so, over 100 fulltime faculty, and a very large budget. Dealing with the faculty alone would overtax the abilities and capabilities of almost anyone. Elena’s performance across-the-board was really extraordinary. Were there occasions when she made people unhappy or barked at someone? Yes. I had one incident myself where I got out in front of Elena on a very important matter regarding communicating with students about a particular exam. When she found out what I did, she let me have it, to the point of yelling at me. Frankly, I thought she was right and I was wrong and I do not have particularly thin skin. We have a very good relationship from working together on the appointments committee. We will often have some strong disagreements but communicate them clearly.” * * *

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* * * “She is a person who came to be known on the committee as having strong views that she would present when she held them as such, but she would listen and, on occasion, but not always, yield to either conflicting evidence or contrary views.





When I say ‘strong,’ I simply mean someone who clearly expressed their views and convictions in an effective manner, but was not overbearing. She readily achieved the confidence of the entire committee and all of us looked forward to our deliberations under her leadership. I guess I would say that she had a brilliant and strong mind and also a mind that was open to changing views in the face of new evidence or contrary arguments that convinced her otherwise.” * * * “As far as my view of her overall attitude towards hiring, I think it fair to say that she paid little attention to ideology or methodology. By methodology, I mean she was open to political scientists, law and humanity types, doctrine people like myself, or economists, all of whom approach the teaching of the law in a slightly different way. When people say that she may have tended to hire more conservative people, I don’t know if they’re saying that as a compliment or criticism.” * * * “She was cautious in forming views and was frank in conceding when questions were close calls. At the same time, when she formed her views, they were strongly held and effectively communicated. This was a committee of very strong willed and articulate people. She held her ground well, yet also could see opportunities for developing common ground. She did place a high priority on consensus. Looking at her performance as Dean overall, the observation I would make is that she was right down the middle of the pike on the theoretical/practical spectrum. Some people view legal scholarship as essentially a theoretical or academic exercise. Others stress the fact that we are training lawyers and we need to keep our feet on the ground, being very practical minded. Elena managed to stay in the middle ground between these two extremes and it is that tendency that I would point to as probably the best indicator of how she would be on the Court.” * * * Those who have worked with her in the Office of Solicitor General also find her temperament to be on a par with her abilities. Her temperament in this position over the past year

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views. She questions thoroughly because she wants to understand the positions of all parties. She is held in high esteem by her colleagues, is respectful of others, and is said to treat “everyone with dignity and respect.” Setting high expectations of herself and others in meeting the responsibilities of her office, she is described as a careful listener who does not impose “preformed views.” In sum, the consensus is that the nominee is demanding, open-minded, and works well with others in a collaborative setting to decide important issues of law involving considerable complexity. We find her temperament to be well-suited to the job at hand and deserving of the “Well Qualified” rating.

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Mr. Chairman, let me say once again what we noted when we last testified before this Committee: the goal of the ABA Standing Committee has always been – and remains – in concert with a goal of your Committee: to assure a qualified and independent judiciary for the American people.

Thank you for the opportunity to present this statement concerning the professional qualifications of General Kagan.

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Chair Michael Gottesman, Professor of Law (Equal Protection, Substantive Due Process, Second Amendment, Twenty-First Amendment, Separation of Powers, Employment Discrimination, Voting Rights, Other Civil Rights, Labor and Employment) Members Hope Babcock, Professor of Law (Administrative Procedure, Environmental Law, Freedom of Information Act, Indian Law, Justiceability, Regulated Industries, Statutory Interpretation) Sonya Bonneau, Associate Professor of Legal Research and Writing (Legal Research and Writing) Michal J. Cedrone, Associate Professor of Legal Research and Writing (Death Penalty and Habeas Corpus, Federal Sentencing, Other Criminal Law & Procedure, First Amendment – Religion, Prisoner Civil Claims/Eighth Amendment, Health Law and Insurance Programs) Sherman L. Cohn, Professor of Law (Civil Procedure, Appellate Procedure, Jurisdictional and Choice of Law, Professional Responsibility, International Law) John Copacino, Professor Law (Director of the Criminal Justice Clinic and the E. Barrett Prettyman Graduate Fellowship in Criminal Trial Advocacy) Michael R. Diamond, Director of the Harrison Institute for Housing and Community Development, Georgetown Law; Professor of Law (Corporate Law) Laura Donohue, Associate Professor of Law (National Security Law) Steven Goldblatt, Director, Appellate Litigation Clinic; Co-Director, Supreme Court Institute;

Professor of Law (Appellate Practice, Criminal Law, Civil Rights, Constitutional Law)

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Melissa Henke, Associate Professor of Legal Research and Writing (Legal Research and Writing) Greg Klass, Associate Professor of Law (Contracts, Jurisprudence) Julia L. Ross, Professor of Legal Research and Writing (Legal Research and Writing) Rima Siorta, Associate Professor of Legal Research and Writing (Legal Research and Writing) Abbe Smith, Co-Director, Criminal Justice Clinic and E. Barrett Prettyman Fellowship Program;

Professor of Law (Criminal Law, Criminal Procedure, Trial Advocacy, Legal Ethics)

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Chair Gregory P. Magarian, Professor of Law (Constitutional Law, Legislation, Political Speech) Members Scott A. Baker – Professor of Law (Commercial Law, Intellectual Property) Kathleen F. Brickey – James Carr Professor of Criminal Jurisprudence (Criminal Law) Marion Crain – Wiley B. Rutledge Professor of Law and Director of the Center for the Interdisciplinary Study of Work and Social Capital (Labor Law, Employment Law) John N. Drobak – Professor of Law (Civil Procedure, Property, Antitrust) Douglas Bruce LaPierre – Professor of Law (Appellate Procedure, Constitutional Law) Stephen H. Legomsky – John S. Lehmann University Professor (Immigration and Refugee Law, International Human Rights) Ronald M. Levin – Henry Hitchcock Professor of Law (Administrative Law) Mae C. Quinn – Professor of Law and Co-Director of the Civil Justice Clinic (Criminal Procedure) Neil M. Richards – Professor of Law (Privacy Law, Constitutional Law) Laura Ann Rosenbury – Professor of Law (Labor and Employment Law) Hillary Sale – Walter D. Coles Professor of Law and Professor of Business (Corporate and Securities Law)

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Chairs Thomas Z. Hayward, Jr., K&L Gates LLP, Chicago, IL Roberta D. Liebenberg Fine, Kaplan & Black, Philadelphia, PA Mary A. Wells Wells, Anderson & Race, LLC, Denver, CO Members Judge Phyllis W. Beck (ret.), Philadelphia, PA Landis C. Best Cahill Gordon & Reindel LLP, New York, NY John J. Bursch Warner Norcross & Judd LLP, Grand Rapids, MI W. Wayne Drinkwater, Jr.

Bradley Arant Boult Cummings LLP, Jackson, MS David S. Friedman Senior Counsel, Boston Red Sox, Boston, MA Richard B. Kapnick Sidley Austin LLP, Chicago, IL The Honorable Timothy K. Lewis Schnader Harrison Segal & Lewis LLP, Washington, DC Andrew M. Low Davis Graham & Stubbs LLP, Denver, CO Wendy Lumish Carlton Fields, P.A, Miami, FL Aaron M. Panner, Kellogg, Huber, Hansen, Todd, Evans & Figel, P.L.L.C., Washington, DC

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Paul Watford Munger, Tolles & Olson LLP, Los Angeles, CA Sheryl J. Willert Williams Kastner, Seattle, WA

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