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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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 Tucker herself, according to an unpublished transcript of the telephone conference, interpreted the charge merely to mean that Kavanaugh "did not respond appropriately" to questions.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.