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 lthough
it has been out of sight since President Bush took away the American
Bar Association's formal role in assessing judicial nominees, the
long-running feud between Republicans and the ABA hasn't gone away.
And on Capitol Hill Monday, it came roaring back into view.
The issue was
the nomination of David Bunning, son of Kentucky senator Jim Bunning,
to a seat on the U.S. District Court in Kentucky. After the younger
Bunning was nominated by the White House in August, the ABA began
an investigation into his qualifications (after Bush took away its
formal role in the judicial-selection process, the ABA continued
doing candidate evaluations, only without the traditional early
notification from the White House). Recently, Bunning became the
first Bush-administration nominee to receive a "not qualified"
rating from a majority of the ABA's committee on the federal judiciary.
Bunning, 35,
has been an assistant United States Attorney for ten years and has
prosecuted hundreds of cases. The ABA said his ten years of experience
fell short of the 12 years of experience it feels is best for judicial
candidates. ABA evaluators also said the nature and quality of Bunning's
experience did not meet its standards.
Members of
the ABA evaluating committee appeared before the Judiciary Committee
Monday to explain their decision. In a harsh assessment of Bunning's
qualifications, David Weiner, a member of the ABA committee, told
the panel that Bunning's experience in civil cases was "very
limited and very shallow." Weiner said Bunning's criminal-case
experience was "not of the type that calls for particularly
challenging lawyering," and that Bunning's writings "read
very much like the work of a young associate."
In addition,
Weiner was unimpressed with Bunning's decision to attend the University
of Kentucky for both undergraduate and law-school training. Weiner
cited what he called Bunning's "lack of academic achievement"
and said his "middle-of-the-class law school record does not
speak well for him." Finally, Weiner said Bunning showed "no
intellectual spark or legal enthusiasm that carried the day with
our committee."
On the other
side, Republicans presented a panel of three federal judges from
Kentucky who had presided over dozens of cases in which Bunning
represented the United States. "I think he possesses a strong
intellectual capacity and very good writing skills," said U.S.
District Court chief judge Karl Forester. "His professional
character is beyond reproach." "Can the candidate recognize
legal issues? How is his analysis?" asked retired judge Henry
Wilhoit, who heard more than 60 cases involving Bunning. "David
Bunning has what it takes."
The committee
also heard from an ABA investigator who did a second review of Bunning's
work. In a few cases in which the ABA committee finds a candidate
not qualified, officials call in another investigator to assess
the assessment. In Bunning's case, they asked Judah Best, a former
chairman of the ABA committee, to take another look at Bunning's
qualifications. Best told the committee that he found Bunning to
be qualified and discovered that several "distracting issues"
— including resentment over Bunning's influential father and
questions of whether Bunning was too young to take the bench —
played a role in the ABA's original negative assessment. (Bunning
was sponsored by Kentucky senator Mitch McConnell and by ranking
Republican Orrin Hatch, while his father sat in the audience.)
Beyond Bunning's
qualifications, the hearing re-opened public debate over the ABA's
methods. Republicans are particularly unhappy with the ABA's practice
of providing the committee with a one-sentence, qualified/not qualified
evaluation of each nominee. In addition, the bar association does
not allow senators to see the files from its investigation. Hatch
wondered why the Senate, which regularly requests and receives files
from FBI background investigations of judicial nominees, is not
allowed a look at material from the ABA investigation.
"If the
FBI can trust us here with the most sensitive information, then
why can't the ABA?" Hatch asked. "Is the ABA information
more sensitive than the critically sensitive FBI files?" The
ABA's "one-line, cursory conclusion," Hatch said, "feeds
the growing public perception that the ABA's evaluations are arbitrary
and capricious or tainted by politics."
There was also
significant Republican ire at the ABA's apparent disdain for lawyers,
like Bunning, who do not possess degrees from top universities.
"They're so damned elitist," says one GOP aide. "Mitch
McConnell went to the University of Kentucky, and all the judges
on that panel had gone there." Indeed, McConnell did not hide
his unhappiness with David Weiner's critique of Bunning's record.
"As another UK graduate who graduated in the middle of his
class, I thought that stung a little bit," McConnell told the
committee. "Mr. Weiner, I would not hold my breath on being
invited to address the University of Kentucky's alumni law association."
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