Friend of Hillary Clinton Tries to Stop Kavanaugh Confirmation to D.C. Circuit
Hijinks at the American Bar Association
In early 2006, D.C. Circuit nominee Brett Kavanaugh encountered one more obstacle on his path to confirmation: Marna Tucker, a longtime friend of Hillary Clinton, had somehow recently become the D.C. Circuit member on the American Bar Association’s judicial-evaluations committee, and she found an occasion to revisit the ABA’s two previous ratings of Kavanaugh as Well Qualified.
(This post draws heavily from a Weekly Standard article that I wrote in 2006.)
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When George W. Bush first nominated Kavanaugh in July 2003, the ABA committee gave him its top overall rating of Well Qualified”: A “substantial majority”—10 to 13 of the 14 voting members—gave him that rating, and the remaining minority rated him Qualified. (Under the ABA’s longstanding practice, “[t]he majority rating is the rating of the committee.”) When Kavanaugh was renominated in early 2005, the committee’s supplemental evaluation yielded the same “well qualified” rating.
At the end of the Senate’s 2005 session, Democratic senators insisted that Kavanaugh’s nomination, alone among the pending judicial nominations, be returned to the White House. Their insistence seemed at the time nearly as pointless as it was peevish. It would require Bush to go through the formality of renominating Kavanaugh and thus set him back a few weeks.
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: Marna Tucker had been assigned to the ABA committee as the member responsible for the D.C. Circuit.
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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, Tucker would have been very high on it. Tucker’s narrow specialty, divorce law, was 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 was a close friend and political ally of Hillary Clinton, whose animus against Kavanaugh over his role in independent counsel Ken Starr’s investigation of Bill Clinton drove much of the Democratic opposition to his nomination. She was also a founding board member of the National Women’s Law Center, which actively promoted “reproductive rights” and opposed Kavanaugh’s nomination.
Tucker’s political contributions had been directly entirely towards Democrats: Hillary Clinton (over $4000), John Kerry (she gave his 2004 presidential campaign the maximum allowable $2000); EMILY’s List, the political action committee dedicated to supporting (in its words) “pro-choice Democratic women candidates”; the Democratic National Committee; the 2000 Gore-Lieberman campaign; Teddy Kennedy; Eleanor Holmes Norton; the 1996 Clinton-Gore campaign; the Democratic Senatorial Campaign Committee; and the 1992 Clinton campaign.
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Tucker did not focus her supplemental evaluation on Kavanaugh’s record over the previous year—the only period of time not covered in the ABA committee’s earlier evaluations. Instead, she launched a sweeping 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 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. Instead, he enlisted a second committee member to assist her: John Payton, a liberal civil-rights activist who was on the board of directors of People for the American Way, which vigorously opposed Kavanaugh’s nomination.
On his previous evaluations, Kavanaugh’s relations with Tucker’s predecessor—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 him. 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 (in the ABA’s words) 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 negative comments on Kavanaugh that Tucker and Payton had received. 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, in his years as staff secretary overseeing the full range of executive-branch decisions, he was exposed only to a “very narrow band” of views.
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Tucker’s gambit fizzled.
When the Gang of 14 Agreement was reached in May 2005, Senate Democrats claimed that “an unwritten part of the pact” was that Kavanaugh “would not be confirmed.” But that imaginary provision was only as good as the paper it was not written on.
Almost exactly one year later, on May 25, 2006, 67 senators—including 12 Democrats—voted in support of the successful cloture motion on Kavanaugh’s nomination. The following day, the Senate confirmed Kavanaugh’s nomination by a vote of 57 to 36. (Four Democrats voted to confirm Kavanaugh; two Republicans who would have voted to do so were absent.)