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The American Bar Association Standing Committee on the Federal Judiciary has rated U.S. Supreme Court Associate Justice nominee Elena Kagan as “well-qualified,” the highest mark the committee offers.

Since 1953, the ABA has had a role in reviewing the qualifications of federal court nominees, including Supreme Court nominees.  A committee of 15 members — two from the Ninth Circuit, one from each of the 12 other federal judicial circuits and one who serves as chair — measures the individual’s integrity, professional competence and judicial temperament. 

While the standing committee insulates its work from all other activities of the association, ABA president Carolyn Lamm is familiar with the procedures used to evaluate a nominee’s qualifications.  Lamm served as chair of the committee from 1995 to 1996. 

Lamm explained, “In terms of legal competence, you’re looking at legal, analytical ability.  You’re looking at what they’ve written, how they’ve argued, whether they’ve argued — how they’ve done it.  We listen to opponents, or from those on the same side and from judges to find out, how did they do as lawyers and what is their legal ability?”

A comprehensive evaluation is conducted by interviewing a broad spectrum of the legal community, reviewing pertinent materials written by the nominee, and interviewing the nominee personally.  After the evaluation is complete, the findings are assembled into a report which is reviewed by each member of the standing committee who then individually rates the nominee as either “well-qualified,” “qualified” or “not-qualified.”  The majority vote constitutes the official rating of the ABA standing committee.

To merit a “well-qualified” rating, a Supreme Court nominee must be a preeminent member of the legal profession, have outstanding legal ability and exceptional breadth of experience, and meet the highest standards of integrity, professional competence and judicial temperament.  Kagan’s well-qualified rating was unanimous with one abstention.

Investigations of nominees to the U.S. Supreme Court differ in respect to other federal nominees in that they are conducted after the president has selected a nominee; they involve all members of the standing committee; a team or teams of law professors examine the nominee’s legal writings; and a group of practicing lawyers with Supreme Court experience also examines the writings.

Kagan currently serves as solicitor general of the United States.  She was nominated to fill the seat of John Paul Stevens, who will step down at the end of the 2009-2010 Supreme Court term.

When asked how the standing committee evaluates nominees who may not have had prior judicial experience, standing committee chair Kim Askew noted, “There are many, many judges who have served on courts who have never been judges and are very effective judges.  We look at what they do and we go to the three criteria — professional competence, integrity, and temperament — and we look at what they have done in their legal careers in the practice of law, which may or may not be on a bench.”

The past five U.S. Supreme Court nominees were also found well-qualified by the committee.

The Senate Judiciary Committee is scheduled to begin its confirmation hearing for Kagan on June 28.  Kim Askew, the chair of the Standing Committee on the Federal Judiciary, has been invited to testify relating to the standing committee’s rating.



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