Supreme Court Nominations
Judge Brett M. Kavanaugh earned the highest rating of unanimously “well qualified,” members of the American Bar Association’s Standing Committee on the Federal Judiciary told the U.S. Senate Judiciary Committee on Friday.
“We concluded that his integrity, judicial temperament, and professional competence met the highest standards for appointment to the court,” said Paul T. Moxley of Salt Lake City, the chair of the committee. “Our rating of unanimously well-qualified reflects the consensus of his peers who have knowledge of his professional qualifications.”
John R. Tarpley of Nashville, the standing committee’s representative for the Cincinnati-based 6th U.S. Court of Appeals and the lead evaluator, said the panel found that Kavanaugh “enjoys an excellent reputation for integrity and is a person of outstanding character. It was clear from all or our interviews and all of the other evidence that he learned the importance of integrity from a very early age.”
The testimony came on the final of four days of hearings on President Donald Trump’s nomination of Kavanaugh, 53, a judge on the U.S. Court of Appeals for the District of Columbia Circuit, to succeed Justice Anthony M. Kennedy, who retired July 31 at age 82.
Both Republican and Democratic members of the Judiciary Committee expressed appreciation for the ABA’s evaluation process even though, as Sen. Lindsey Graham, R-S.C., said: “We sometimes disagree with the ABA’s ratings from a Republican point of view.
“I’m glad we have it,” Graham said. “From this committee’s point of view, this is a valuable input.”
Sen. Dianne Feinstein of California, the ranking Democrat on the committee, called the ABA’s process “very important.”
“The kind of rating it is, is to some extent what colleagues know of colleague,” she said. “I think it’s important, because we see one side of the person. The ABA knows their professional side, and hears their professional side, and that’s very important.”
Moxley and Tarpley explained that the standing committee does not propose, endorse, or recommend nominees. Its sole function is to evaluate a nominee’s integrity, professional competence and judicial temperament, and then rate the nominee as “Well Qualified,” “Qualified,” or “Not Qualified.”
In so doing, the committee relies heavily on the confidential, frank, and considered assessments of lawyers, academics, judges and others who have relevant information about the nominee’s professional qualifications.
Members of the standing committee conduct separate investigations into the nominee’s professional qualifications within their respective circuits and prepare confidential reports.
For Supreme Court nominees, the standing committee assembles reading groups of scholars and practitioners to review the nominee’s written work. For Kavanaugh, the University of Maryland Law School and the University of Utah Law School formed reading groups, made up of 38 professors who are recognized experts in the substantive areas of law they reviewed. A third reading group, the Practitioners’ Reading Group, was made up of 10 nationally recognized lawyers with significant trial and appellate experience who are knowledgeable concerning Supreme Court practice.
Standing Committee members solicited input from almost 500 people who were likely to have knowledge of the nominee’s professional qualifications, including federal and state judges, lawyers and bar representatives.
The Standing Committee reached out to 471 judges, lawyers, and professors for information regarding Judge Kavanaugh’s integrity, professional competence and judicial temperament. The committee received more than 120 responses, and the committee conducted interviews with those respondents who had personal knowledge of Kavanaugh through their professional or personal dealings with him.
Tarpley provided the committee with some of the written observations made about Kavanaugh.
“He has the highest personal morality and the highest ethics,” said one.
“He is what he seems, very decent, humble, and honest,” said another.
The Maryland Law school reading group observed that “Judge Kavanaugh is an excellent writer with a flair for making complicated facts understandable.”
As to Kavanaugh’s demeanor, one respondent observed, “He is easy to get along with and has a good sense of humor.”
Tarpley told the committee: “Can you imagine that, a judge with a good sense of humor?”
Noting the ABA’s more than 400,000 members across the country, Tarpley said: “We are a very diverse group of lawyers, and we agree that Judge Kavanaugh meets our highest standard and rated him unanimously well-qualified to serve as associate justice on the United States Supreme Court.”
The ABA representatives faced only a few questions. Sen. Mike Crapo, R-Idaho, said he appreciated the organization, but wondered “whether the ABA, or anybody for that matter, should be given a blackball and be able to prohibit or ban a candidate from being considered by this committee if it doesn’t give it its approval.”
Moxley said: “We only see our part of the ball. What we’re familiar with is the competence of nominees, their integrity and their judicial temperament. … I don’t think we blackball. We just give our recommendations.”
Sen. Richard Blumenthal, D-Conn., expressed concerns about attacks by public officials, “and I’m not going to mince words, by the president of the United States—on the judiciary are a disservice to judicial independence.”
Tarpley said, “The ABA feels very strongly that a fair and independent judiciary is a linchpin of our society. The Founding Fathers set it up like that. It’s survived all these hundreds of years. We feel very strongly about the fair and independent judiciary.”
“Attacks on the courts that undermine the faith and confidence of the public and the credibility of the courts are a real blow to judicial independence, are they not?” he said.
“I don’t disagree with that,” Moxley said.
Sen. Chris Coons, D-Del., asked whether the ABA representatives would be concerned “if we proceeded to consider a nominee for a judicial post without taking into account the ABA’s advice.”
Tarpley said: “It’s an incremental part of the process. … I’m a lawyer. I’m really interested in the kinds of judges that we have. … It’s valuable work we believe that we do, and we think it’s important to the process.”
The Judiciary Committee plans to meet for a vote on Kavanaugh’s nomination Sept. 13, but by its normal procedures, it will then hold over the panel vote for another week. Senate Republicans could hold a floor vote in time to confirm Kavanaugh before the Oct. 1 start of the new Supreme Court term.