The Magazine

Lowering the Bar

The corrupt ABA judicial evaluation process.

Jun 12, 2006, Vol. 11, No. 37 • By EDWARD WHELAN
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IF THERE WERE A LIST of lawyers least suited to assess Brett Kavanaugh's fitness to serve as a judge on the D.C. Circuit, Marna Tucker would be very high on it. Tucker's narrow specialty, divorce law, is far removed, in both substance and sophistication, from the work of the federal appellate courts--especially from the complex cases of administrative law that are the staple of the D.C. Circuit. Even worse, Tucker could hardly pretend to be impartial towards Kavanaugh. A fervent gender activist and supporter of other left-wing causes, she is a longtime ally of those who have vituperated the conservative Kavanaugh on account of his work for Kenneth Starr's independent-counsel investigation and his service as White House lawyer and staff secretary under President George W. Bush.

After nearly three years of Democratic obstruction, Kavanaugh's nomination was recently confirmed by the Senate, and he has taken his seat on the D.C. Circuit. But the untold story of his recent treatment by the ABA's Committee on the Federal Judiciary, which rates all federal judicial nominees, deserves attention, for it illustrates a longstanding defect that periodically plagues the committee's evaluations of Republican nominees.

When President Bush first nominated Kavanaugh in July 2003, the ABA committee gave him its top overall rating of "well qualified" (with a "substantial majority"--10 to 13 of the 14 voting members--rating him "well qualified" and the remaining minority rating him "qualified"). When Kavanaugh was renominated in early 2005, the committee's supplemental evaluation yielded the same "well qualified" rating. Then, as the Senate's 2005 session was wrapping up, Democratic leadership in the Senate, in a curious move, insisted that Kavanaugh's nomination, alone among all the pending judicial nominations, be sent back to the White House. The Democrats' insistence seemed at the time peevish, requiring President Bush to go through the formality of renominating Kavanaugh in January 2006. Little noticed was the fact that, under the ABA committee's practices, the renomination would trigger yet another supplemental evaluation of Kavanaugh.

There was every reason to expect the ABA's 2006 supplemental evaluation to be routine, as its purpose was simply to cover the one-year period since the previous rating. But a key fact had changed over that year: Tucker had been assigned to the ABA committee as the member responsible for the D.C. Circuit. Instead of focusing on the previous year--the only period of time not covered in the earlier evaluations--Tucker launched a scorched-earth review of Kavanaugh's entire career. She conducted 91 witness interviews--far more than the 55 that underlay the original 2003 evaluation--but showed little interest in witnesses identified by Kavanaugh. When ABA judiciary committee chairman Stephen Tober discovered (in his words) that "this was a nominee that Ms. Tucker was spending a considerable amount of time on," he did not rein her in but instead enlisted a second committee member--liberal civil-rights activist John Payton--to assist her.

Kavanaugh's relations with the previous D.C. Circuit member--also a Democratic woman--had been cordial and professional. In sharp contrast--according to administration officials whom Kavanaugh spoke with at the time--Tucker and Payton were adversarial and partisan when they interviewed Kavanaugh. Tucker criticized the White House for ending the ABA committee's privileged role in reviewing judicial candidates before they were formally nominated. Tucker and Payton displayed a bizarre interest in an internal Senate dispute (not involving Kavanaugh) that arose in late 2003 after a Republican staffer discovered on a shared computer directory a Democratic strategy memo that urged that a Sixth Circuit nominee be stonewalled in order to affect the outcome of the University of Michigan racial-preferences cases pending in that court. And Payton, who had argued those same cases in the Supreme Court in 2003, tried to probe what part Kavanaugh had played in the White House's formulation of the administration's position in those cases.

Returning from the interview, Kavanaugh told his White House colleagues that Tucker's conduct of the interview deeply concerned him. Fortunately for Kavanaugh, his strong record and the previous ratings he had received from the ABA committee made it difficult for Tucker to do him serious damage. Her evaluation reduced his overall rating from "well qualified" to "qualified" (with a minority of the committee still finding him well qualified), but even that rating meant that he had met the committee's "very high standards with respect to integrity, professional competence and judicial temperament."