There was something fishy about the "red herring" ...

After PolitiFact's ironic suggestion that Mitt Romney had used a red herring with his argument about fading female participation in the work force under President Obama, I purposed to have a look at PolitiFact's past use of the term "red herring."

Apart from a number of uses of the term by expert sources, I found only one example.  This one was again by writer Louis Jacobson. 

The fact check concerned Senator Jon Kyl's assertion that the American Bar Association's rating was surprising considering Kagan's lack of courtroom experience.

Let's have a read of the relevant passage (bold emphasis added):

We didn't comb through her semester-by-semester course loads or pro-bono assignments to track her practical legal work, but we think this line of argument is a red herring anyway. The sentence sets up two alternatives -- either "distinguished accomplishments in the field of law or experience that is similar to in-court trial work." We see no requirement that the "distinguished accomplishments" be directly related to the in-court practice of law.

The fairly obvious way to check Kyl's claim would have involved looking at the way the ABA historically treated potential nominees with a lack of courtroom experience.  Judging from the list of references, Jacobson did nothing of the kind.  As a second choice, an investigator might solicit the opinions of legal experts.  Jacobson did not take that course, either.

Instead, we get Jacobson's opinion of the ABA's criterion stacked against Kyl's.  With Jacobson rather than Kyl writing the fact check, we find Jacobson preferring his interpretation of the criterion to Kyl's.  Jacobson apparently determined that the validity of Kagan's ABA rating was not a central issue with respect to the the confirmation process for Kagan.  Instead, it was a mere distraction.

Dare I point out that Jacobson again achieved unintended irony with his use of the term "red herring"?

Where's the fact check?