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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."

But the ABA committee and Tucker weren't through with Kavanaugh. Responding to hyperbolic Democratic rhetoric about Kavanaugh's downgrade, Tober took the extraordinary step of submitting to the Senate Judiciary Committee a statement that presented, in isolation and without attribution, the committee's supposed dirt on Kavanaugh. And Tober and Tucker supplemented this statement in a telephone conference with senators and staffers.

One witness, Tober explained, had charged that Kavanaugh had "dissembled" in an oral argument. And (among a few other criticisms) several witnesses, all supposedly using the same word, had characterized Kavanaugh's White House work as "insulated." Tober and Tucker asserted that, consistent with their committee's policies, Kavanaugh had been informed of all negative items and had been given a full opportunity to answer them.

The ABA's disclosures, and the manner in which they were presented, astounded Kavanaugh and his advisers. Tucker had never told him the incendiary charge about having "dissembled" in court, he explained to White House colleagues. Had he heard it, he pointed out compellingly, he certainly would have tried to learn more about it from Tucker in order to dispute it. And, indeed, it appears that in the original charge the term "dissembled" was misused. Questioned in the telephone conference about the charge, Tucker stated that the "quote was 'He did not handle the case well as an advocate; he was not forceful, and when he dissembled, he did not argue his case clearly.'" The quoted statement makes little sense: It would be peculiar to criticize dissembling (a form of lying) merely for its effect on clarity, rather than as an intrinsic evil. Tucker herself, according to an unpublished transcript of the telephone conference, interpreted the charge merely to mean that Kavanaugh "did not respond appropriately" to questions. But Kavanaugh was never given a chance to contest the charge. And Senate Democrats, handed the ammunition by Tober and Tucker, profligately highlighted the "dissembling" charge to impugn Kavanaugh's integrity.

As for the charge that Kavanaugh's White House experience was "insulated": It was clear to Kavanaugh that Tucker herself was committed to that view. She even ignorantly insisted that, as staff secretary overseeing the full range of executive-branch decisions, he was exposed only to a "very narrow band" of views.

With hindsight, only a naïf would believe that Tucker and Senate Democrats did not work together to engineer the return of Kavanaugh's nomination in December 2005. The most sensible hypothesis is that Tucker signaled that she was well positioned to inflict damage on Kavanaugh--and that sending the nomination back to the White House would enable her to do so through a supplemental evaluation. Why else would Senate Democrats have insisted on sending the nomination back?

The bigger question is why a highly partisan divorce lawyer was ever appointed to the committee in the first place. The sitting ABA president, during his one-year term, has plenary authority to fill the five or so vacancies that arise each year. (The committee chairman and the 14 other members serve staggered three-year terms.) With the ABA's transformation over the last few decades from an apolitical professional organization into a liberal interest group, ABA presidents and the bar activists who vie for influential ABA positions have trended leftwards. Current ABA president Michael S. Greco, a zealous liberal, presumably selected Tucker because of, not in spite of, her partisan credentials.

Tober's role in Tucker's excesses is also significant. Under the committee's procedures, the chairman and the circuit member who conducts the investigation have extraordinary practical clout in shaping the views of the other committee members, as they prepare the report that goes to the full committee. That Tober did not try to restrain Tucker, but instead teamed her up with another liberal activist, suggests a woeful inattention on his part to partisan conflicts of interest.

Not coincidentally, Tober recently oversaw the committee's remarkable "not qualified" rating of Fifth Circuit nominee Michael B. Wallace, a highly respected attorney and former Supreme Court law clerk for the late William Rehnquist. In 1987, when Wallace served on the board of the Legal Services Corporation, Tober presented strikingly intemperate testimony to an LSC committee that Wallace chaired. Opposing a proposed regulation to require that boards receiving LSC funds have bipartisan membership (as does the LSC itself), Tober flamboyantly accused Wallace of attempting to "fashion a political bias litmus test" and of having a "hidden agenda," and he vowed to disobey the regulation if it became law.

The transcript of Tober's testimony, which also includes a number of loopy constitutional arguments, makes one wonder why Tober has any role in evaluating judicial nominees. It's even more disturbing that he would not see fit to recuse himself from reviewing the nomination of Wallace, for whom he plainly bears a strong animus.

Perhaps Tober will provide a persuasive explanation for the committee's negative rating of Wallace. But one lesson from the Kavanaugh process is that Tober's explanations should not be accepted at face value. In any event, it's long past time for the ABA to take serious steps to ensure the selection of committee members who will not let political bias infect their evaluations of judicial nominees. Absent such steps, the Senate Judiciary Committee should deprive the ABA committee of the privileged status it has long been accorded.

Edward Whelan is president of the Ethics and Public Policy Center and a contributor to National Review Online's Bench Memos blog on judicial nominations.