POLITICS - Elena Kagan's Confirmation

"Kyl says American Bar Association calls for 12 years of experience in practice of law" PolitiFact 6/28/2010

Excerpt

We downloaded a copy of a pamphlet published by the 15-member ABA panel that scrutinizes the records of appointees to federal judgeships and rates them as either "well qualified," "qualified" or "not qualified." (The ratings aren't binding, but they carry weight among many of the senators who ultimately vote on federal judgeships.

The pamphlet, "The American Bar Association Standing Committee on the Federal Judiciary: What It Is and How It Works," details the criteria used in the panel's evaluations.

"The committee's evaluation of prospective nominees to the federal bench is directed solely to their professional qualifications: integrity, professional competence and judicial temperament," the pamphlet says.

It goes on to say, "The committee believes that a prospective nominee to the federal bench ordinarily should have at least 12 years’ experience in the practice of law. In evaluating the professional qualifications of a prospective nominee, the committee recognizes that substantial courtroom and trial experience as a lawyer or trial judge is important. Distinguished accomplishments in the field of law or experience that is similar to in-court trial work — such as appearing before or serving on administrative agencies or arbitration boards, or teaching trial advocacy or other clinical law school courses — may compensate for a prospective nominee’s lack of substantial courtroom experience."

So there is some truth in Kyl's statement. The ABA panel's "own criteria" do indeed "call for, among other things, at least 12 years' experience in the practice of law," as Kyl put it. What he said also fits with the idea that the ABA panel "recognizes that substantial courtroom and trial experience as a lawyer or trial judge is important."

But Kyl's statement leaves out what we think is an important qualifier -- that "distinguished accomplishments in the field of law or experience that is similar to in-court trial work — such as appearing before or serving on administrative agencies or arbitration boards, or teaching trial advocacy or other clinical law school courses — may compensate for a prospective nominee’s lack of substantial courtroom experience."

We realize that distinguished alternate career paths, by the panel's definition, "may compensate" for having less than 12 years of practice -- not "will compensate." But Kagan can make a pretty good argument that she has compensated for not having 12 years’ experience in the practice of law by instead satisfying the standard of "distinguished accomplishments in the field of law." She has, after all, served as U.S. Solicitor General, Dean of Harvard Law School and as a White House counsel -- at least three positions that we think most people would classify as "distinguished" achievements of a lawyer's career.