Bench Memos

The ABA’s Ridiculous Rating of Kagan

The ABA’s Standing Committee on the Federal Judiciary has unanimously (with one abstention) given Elena Kagan’s nomination to the Supreme Court its highest rating of “well qualified.”  In order to appreciate how ridiculous that rating is, consider the Standing Committee’s description of its own standards:

In its so-called Backgrounder, the ABA Committee states that it “utilizes the same evaluation criteria for Supreme Court nominees as for nominees to the other federal courts,” but that “the Committee’s evaluation of a Supreme Court nominee is based on the premise that a Justice must possess exceptional professional qualifications.”  (p. 9 (emphasis added).) 

What are the criteria for nominees to the lower courts—the criteria that Supreme Court nominees must excel in?  According to the Backgrounder, lower court judges must have “at least twelve years’ experience in the practice of law.”  Further, “substantial courtroom and trial experience as a lawyer or trial judge is important.”  “[E]xperience that is similar to in-court trial work—such as … teaching trial advocacy or other clinical law courses—may compensate for a prospective nominee’s lack of substantial courtroom experience.”  In addition, “the Committee places somewhat less emphasis on the importance of trial experience as a qualification for the appellate courts.”  (p. 3 (emphasis added.)

Further, according to this additional explanation, in order to get a “qualified” or “well qualified” rating, a Supreme Court nominee “must be at the top of the legal profession, have outstanding legal ability and exceptional breadth of experience, and meet the highest standards possible.”  (Emphasis added.)

How does Kagan measure up to these standards?  Among other things:

1.  Kagan does not meet the minimum threshold of “at least twelve years’ experience in the practice of law.”  Her total experience in the practice of law, including her two clerkships, is somewhere around eight years. 

2.  Kagan has zero “trial experience as a lawyer or trial judge.”

3.  So far as I’m aware, Kagan has zero experience that is “similar to in-court trial work.” 

4.  No one could plausibly maintain that Kagan has, in her eight years, “exceptional breadth of experience.”

In sum, there is simply no way that the ABA committee, properly applying its own standards, could generate the rating that it did.

That said, I’m not one bit surprised by the ABA’s rating.  Knowing that Kim J. Askew (whose previous shenanigans I discuss in this post) is chair of the committee and aware of the ABA’s broader recent history, I figured that the fix was in from the outset. 

At least we can all look forward to the ABA’s statement, which (according to the additional explanation linked above) will “explain[] the treasons [sic] for the Committee’s rating.”  Even I find “treasons” a bit harsh, but it does capture the ABA’s betrayal of its own professed standards.

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