By Avi Selk
History repeated itself. At least it had a spell of deja vu when the American Bar Association released an extraordinary statement at a crucial moment that raised concerns about Judge Brett M. Kavanaugh’s nomination to a powerful judicial position — just as it had done 12 years earlier.
Late Thursday evening, the ABA called for an FBI investigation into sexual assault allegations against Kavanaugh before the Senate Judiciary Committee voted on his Supreme Court nomination. The warning was all the more remarkable, because just hours earlier, Kavanaugh and his Republican defenders had cited the ABA’s previously glowing endorsement of the nominee — “the gold standard,” as one leading Republican put it.
Flash back to the mid-2000s and another fight in the Senate over Kavanaugh’s nomination to a federal court:
Democrats for three years had been blocking President George W. Bush’s 2003 nomination of Kavanaugh to the U.S. Court of Appeals for the D.C. Circuit. They argued he was biased, as shown by his work as a lawyer for Bush’s presidential campaign, for an independent counsel’s investigation into President Bill Clinton and for other conservative causes.
Republicans kept pushing to make Kavanaugh a judge on the powerful appeals court, year after year. In his defense, they cited multiple reviews by the ABA’s judicial review committee that found him “well qualified” — the big attorney association’s highest possible endorsement, meaning Kavanaugh had outstanding legal abilities and outstanding judicial temperament.
But in May 2006, as Republicans hoped to finally push Kavanaugh’s nomination across the finish line, the ABA downgraded its endorsement.
The group’s judicial investigator had recently interviewed dozens of lawyers, judges and others who had worked with Kavanaugh, the ABA announced at the time, and some of them raised red flags about “his professional experience and the question of his freedom from bias and open-mindedness.”
“One interviewee remained concerned about the nominee’s ability to be balanced and fair should he assume a federal judgeship,” the ABA committee chairman wrote to senators in 2006. “Another interviewee echoed essentially the same thoughts: ‘(He is) immovable and very stubborn and frustrating to deal with on some issues.’”
A particular judge had told the ABA that Kavanaugh had been “sanctimonious” during an oral argument in court. Several lawyers considered him inexperienced, and one said he “dissembled” in the courtroom.
The reviews weren’t all bad.
In the end, the ABA committee weighed Kavanaugh’s “solid reputation for integrity, intellectual capacity, and writing and analytical ability” against “concern over whether this nominee is so insulated that he will be unable to judge fairly in the future.” In a split vote, it downgraded the rating of the nominee to simply “qualified” — meaning he met the ABA’s standards to become a judge but was not necessarily an outstanding candidate.
A day after the ABA lowered its rating, the members of the Senate Judiciary Committee called Kavanaugh to return and sit before them and argued about how seriously the ABA’s concerns should be taken.
“They cannot be dismissed, as some of my colleagues suggest, as merely intemperate rants by Democrats on the committee,” Sen. Charles E. Schumer (D-N.Y.) argued. “Predictably, of course, some are already launching a campaign to denigrate the ABA.”
Some did accuse the ABA of bias. Other Republicans dismissed the warnings and noted the group still found Kavanaugh to be qualified overall.
“Based on your going through that experience, would you recommend that we continue to consult the ABA when it comes to judges?” Sen. Lindsey O. Graham (R-S.C.) asked Kavanaugh, who laughed and declined to answer.
Two days after the hearing, the Senate Judiciary Committee voted to recommend Kavanaugh’s nomination along party lines. The full Senate did much the same later that month — and so Kavanaugh finally became a member of the bench.
In his 12 years on the court, he apparently resolved the ABA’s concerns about his temperament. Kavanaugh cited the bar association’s new unanimous “well qualified” rating for his nomination to the Supreme Court in his opening statement to the Senate Judiciary Committee on Thursday — an angry, tearful defense against sexual allegations, in which he suggested “revenge on behalf of the Clintons” had inspired his accusers.
“Here’s my understanding,” Graham told other senators afterward, defending Kavanaugh as he had done more than a decade earlier. “If you lived a good life, people would recognize it, like the American Bar Association has — the gold standard. His integrity is absolutely unquestioned. He is very circumspect in his personal conduct, harbors no biases or prejudices. He’s entirely ethical, is a really decent person. He is warm, friendly, unassuming. He’s the nicest person — the ABA.”
But that evening, as Republicans prepared to vote on the nomination, and Democrats accused them of ignoring multiple women’s claims against Kavanaugh, the ABA once again ran up a surprise red flag.
“Deciding to proceed without conducting an additional investigation would not only have a lasting impact on the Senate’s reputation, but it will also negatively affect the great trust necessary for the American people to have in the Supreme Court,” ABA President Robert Carlson wrote in a letter to key senators.
His group’s endorsement of Kavanaugh notwithstanding, Carlson urged the Senate to pause the confirmation and have the FBI investigate the claims against Kavanaugh before making a decision.
Twelve years earlier, the group’s warnings about Kavanaugh had at least delayed his confirmation for the hours it took senators to debate them.
On Friday morning, Judiciary Committee Chairman Charles E. Grassley (R-Iowa) dispensed with the new one in less than a minute.
“The ABA president’s opinion doesn’t alter the fact that Judge Kavanaugh received a very well-qualified rating from the ABA standing committee, and the standing committee did not join this letter,” Grassley said, as Republicans prepared to vote.
Not everyone dismissed the warning. “The ABA said it made that request because of its — quote — respect for the rule of law and due process under law,” Sen. Amy Klobuchar (D-Minn.) told the committee, and then stopped mid sentence as background chatter washed over the room.
“I’ll just wait until the staff is done talking over there,” Klobuchar said, rubbing her eyes.
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