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July 1, 2010

ABA Testimony Reports Legal Community’s Views of Kagan’s Professional Qualifications

The _ Standing Committee on the Federal Judiciary has conveyed the results of an exhaustive study of the American legal community’s perspective on the professional qualifications of U.S. Solicitor General Elena Kagan in light of her nomination to the U.S. Supreme Court. In testimony before the Senate Judiciary Committee, the ABA committee summarized Kagan’s reputation as sterling and noted that the ABA Standing Committee on the Federal Judiciary had unanimously awarded her its highest rating, well qualified.

“Almost all of the experienced, dedicated and knowledgeable sitting judges, former solicitors general 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,” standing committee Chair Kim J. Askew stated in her prepared testimony.

Kagan’s rating by the ABA’s standing committee is a peer review focused solely on: integrity, professional competence and temperament.

The testimony addressed a few points of debate regarding the nomination. The ABA standing committee did investigate Kagan’s handling of military recruiting on campuses in light of the “Don’t Ask, Don’t Tell” policy.

“She provided military recruiters with a degree of student access that likely would not have been provided to private employers with similar policies,” pointed out Askew in written remarks. “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.”

The ABA standing committee closely examined Kagan’s experience outside the bench, as she has not previously served as a judge, and concluded that her professional competence is well supported by a varied and rich legal career spanning academia and the public and private sectors.

“She has a breadth of deep knowledge that few practicing lawyers and judges ever reach,” Askew noted, and quoted one interview in which a sitting federal judge said, “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 our court or a trial court.”

Three reading groups— one at Washington University School of Law, one at Georgetown University School of Law and a third composed of distinguished practicing lawyers — also reviewed Kagan’s writings, ranging from scholarly articles to solicitor general briefs. More than 300 pages of close analysis were then submitted to the ABA standing committee. “Intelligence, clarity and rhetorical force” were among the words of praise used for her writings.

Askew concluded her prepared testimony by reinforcing that the mission of the ABA committee is to “assure a qualified and independent judiciary for the American people.”

The ABA Standing Committee on the Federal Judiciary has been providing evaluations of federal judicial nominees for more than 50 years, and is a free-standing, impartial entity within the association.

“They are independent.  There is not any connection between the officers and the board or any of the policymaking bodies of ABA and the standing committee,” noted ABA President Carolyn Lamm.

In describing Kagan, Askew said, “The clear picture that emerges is that 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.”