When is Your “Legal Experience” Not Really “Legal Experience?” – When Senator Hatch Doesn’t Want You to Sit on the Supreme Court

by Judith E. Schaeffer, Vice-President, Constitutional Accountability Center

This weekend, Senator Orrin Hatch (R-UT), a member and former Chair of the Senate Judiciary Committee, published an op-ed setting out his “case” against the confirmation of Supreme Court nominee Elena Kagan, who currently serves as Solicitor General of the United States.  The Senator’s op-ed was mostly unremarkable, pretty much hitting all of the conservatives’ talking points against General Kagan, including the beaten-to-death claim that Kagan is hostile to the military.  Such distortions of a nominee’s record have, sadly, become standard fare in judicial confirmation battles, and so we will leave them to the side for now and make only the observation that Senator Daniel Patrick Moynihan famously made, which is that Senator Hatch is “entitled to his own opinion, but not to his own facts.”

Specifically, we were bowled over by one aspect of Senator Hatch’s “case” against General Kagan – his claim that Elena Kagan “has little legal experience of any kind,” and his related charge that Kagan has had only two years of “legal practice.”  Has Orrin Hatch been looking at the same Kagan employment history we’ve reviewed?

It’s right here on the Judiciary Committee’s web site, contained in Kagan’s answers to the Committee’s questionnaire.   Let’s take a look . . .

After Kagan graduated from Harvard Law School, she served for a year as a law clerk to Judge Abner Mikva on the U.S. Court of Appeals for the D.C. Circuit, and then for another year as a law clerk to Supreme Court Justice Thurgood Marshall.  Most lawyers would give their eye teeth to have clerked for these two distinguished jurists, and certainly helping judges research and write opinions meets just about anyone’s definition of legal experience if not legal practice.

After her clerkships, Kagan spent two years in private practice at Williams & Connolly, one of the country’s pre-eminent law firms.  Those two years seems to be the only legal practice that Senate Hatch gives Kagan credit for.  But how can that be?

After a stint as a law professor at the University of Chicago (broken up by service as a lawyer on the staff of the Senate Judiciary Committee), Kagan spent approximately two years as Associate Counsel to the President during the Clinton Administration.  Not legal experience or legal practice?  That assertion would undoubtedly come as a great surprise to everyone – Republican and Democrat alike — who has had the privilege of serving as a lawyer to the President of the United States.

Finally, Senator Hatch also seems to have ignored the fact that, since 2009, Elena Kagan has practiced law as this country’s Solicitor General, a position in which she represents the United States government before the Supreme Court.   Not legal experience or legal practice?  We’d call it legal practice at the very highest level there is.

Added to all this experience, of course, is Kagan’s record as a law professor at the University of Chicago Law School (noted above) and at Harvard Law School, her service as a high-level policy advisor to President Clinton, and her highly-praised tenure as Dean of Harvard Law School.  While one could quibble about whether these positions constitute “legal practice,” they are certainly impressive credentials any lawyer would be proud to have on her resume.

It’s one thing for Senator Hatch to parrot a list of conservative talking points about Kagan’s substantive record.  But for Senator Hatch to claim that Kagan has a “lack of experience,” and to thoroughly discount as legal experience her clerkships and her service in the White House Counsel’s Office and as Solicitor General, is a shameful insult to General Kagan.  That this is the Senator’s opening salvo in his “case” against Kagan’s confirmation underscores how lacking in merit that “case” really is.