Bench Memos

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Do As I Say . . .


Elena Kagan’s lack of judicial experience and thin record of practical legal experience of any sort is well-known. But her Judiciary Committee Questionnaire responses, released last week, reveal another type of experience she lacks: pro bono experience.

The legal community is generally highly supportive of offering its services free of charge — pro bono publico a commitment that many have extended even to defending enemy combatants held in Guantanamo Bay. The American Bar Association calls for “every lawyer, regardless of professional prominence or professional workload, to find some time to participate in serving the disadvantaged.” The New York State Bar, of which Kagan is an inactive member, strongly encourages its members to provide at least 20 hours of pro bono legal services annually. The D.C. Bar, of which she is also an inactive member, asks its members to provide 50 hours of pro bono work per year. Indeed, Kagan herself has emphasized the importance of pro bono service. Upon receiving an award from Equal Justice Works, an organization that promotes public-interest legal work and on whose board then-Dean Kagan was sitting, she declared that “part of an obligation of an attorney is to give back and to serve people who need legal representation.”

So how is it that Kagan lists exactly zero hours of pro bono service in her questionnaire response? To be sure, she notes that she has sat on the board of at least one organization that may offer legal services to the poor, the American Indian Empowerment Fund, one that offers tutoring to low-income students, and two more that encourage or help fund young lawyers who want to pursue careers in public-interest law. But not only is this service somewhat tangential to actual pro bono practice, it is limited to her time as dean, and most of it was only in the past three years. Curiously, Harvard Law Students are required to fulfill 40 hours of pro bono legal work in order to graduate or be certified for bar admission. That requirement was obviously not in place when Kagan graduated.

Certainly a dean’s life affords little time for side pursuits like pro bono work. But it is hard to imagine that Kagan was more pressed for time than the average New York or D.C. lawyer. She managed to find time to do some paid work as a member of Goldman Sachs’ Research Advisory Council. There’s nothing wrong with taking such a job, but it does mean she had enough free time on hand that she could have taken a pro bono case or two and turned down the $10,000 stipend from Goldman.

Kagan’s lack of pro bono service is not only at odds with her own rhetoric, but is inconsistent with other judicial and administration nominees. To be sure, many other Supreme Court nominees (Justice Alito, for example) have come from judicial posts and years of government service, during which time regular pro bono service would not be possible. But Justice Sotomayor, for example, volunteered about 100 hours per year during her time as an attorney in private practice. Chief Justice Roberts also was famously generous with his time; the head of the pro bono department at his firm said he never turned down a pro bono case. Unsuccessful Bush nominee Harriet Miers was involved in pro bono work both at her firm and as head of the Texas State Bar.

Obama’s other nominees also tend to show a serious commitment to pro bono work. Attorney General Eric Holder reported more than 50 hours per year of pro bono activities when in private practice. Liberal Ninth Circuit nominee Goodwin Liu reported that in private practice he spent 1/3 of his billable hours on pro bono work, and volunteered extensively as both a clerk and professor. Robert Chatigny, the controversial Second Circuit nominee, spent 10-15 percent of his time in private practice working pro bono.

None of this is to say that extensive pro bono work should be sine qua non for a judicial nominee, but it is another curious factor that puts Kagan both outside the mainstream of nominees and outside what she advocated for other lawyers.

There is no doubt that Kagan was exceptionally supportive of students doing pro bono work and for this she should be commended. But this is nonetheless a case in which her students should do as she says, not as she does.


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