GOP vs. ABA
The old fight flares again.

December 11, 2001 10:25 a.m.

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."