Bench Memos

Credential Creep

In skimming Doug Kmiec’s Legal Times defense (registration required) of OLC nominee Dawn Johnsen, I was surprised to see this description in his byline:  “Douglas W. Kmiec served as head of and principal deputy in the Office of Legal Counsel from 1985 to 1989.” 

In fact, Kmiec headed OLC, first as acting AAG, then as the appointed AAG, for a total of about eight months—from (as best I can tell) roughly August 1988 to April 1989—at the end of the Reagan administration (after Chuck Cooper and most of his deputies had left the office) and the beginning of the Bush 41 administration (until President Bush was able to replace him). 

Kmiec never served as “principal deputy” in OLC.  The formal designation of “principal deputy” appears not even to have existed when Kmiec was at OLC, and folks who were in OLC at the time tell me that Kmiec was never regarded as the lead deputy.  (The only contenders for that role were Sam Alito, who left OLC in March 1987, and Mike Carvin, who left OLC in August 1988.) 

Kmiec’s website bio is even more extravagant, as it asserts that Kmiec was the AAG heading OLC from 1985 to 1989:  “Kmiec served Presidents Ronald Reagan and George Bush during 1985-89 as constitutional legal counsel (Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice).” 

Someone familiar with OLC at the time tells me that it’s unlikely that Kmiec ever met personally with Reagan to provide him legal advice (and that if any such meetings did occur, they would have been very few).  Given that Bush 41 promptly replaced Kmiec, the same surely holds for Bush.

Kmiec’s website bio’s description of his time as dean of Catholic University’s law school is also interesting: 

“[Kmiec] serv[ed] several years as dean and St. Thomas More Professor of Law at The Catholic University of America in Washington, D.C. … As dean at Catholic University, Professor Kmiec did what many said would be impossible; he greatly increased academic quality and student selectivity at the same time he deepened the school’s religious commitment. During his tenure, the law school moved into the upper tier of the U.S. News ranking from tier three.”

I am reliably informed that Kmiec served only two years as dean of Catholic University’s law school; that the law school moved modestly from just above the cusp of “tier 3” (rank 101 and higher) to the distant ranks of “tier 2” (which runs from to 51 to 100—Catholic University’s law school stands at #88 in the 2008 rankings), nowhere near what anyone would sensibly call the “upper tier”; and that his only “impossible” achievement was to unify a fractious faculty in its opposition to him.

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