Bench Memos

The Corrupt ABA Judicial-Evaluation Process

The forthcoming issue of the Weekly Standard contains my article, “Lowering the Bar:  The corrupt ABA judicial evaluation process,” now available online to subscribers.  Based on interviews of administration officials whom Brett Kavanaugh spoke with at the time, my article reveals the real story of what Marna Tucker—the new D.C. Circuit member on the ABA’s judicial-evaluation committee—tried to do to Kavanaugh’s nomination, and of ABA committee chairman Stephen Tober’s complicity.  Rank partisan bias, public lies, failure to follow its own procedures—all that and more characterize what Tucker and Tober did.


Here’s one excerpt:

There was every reason to expect the ABA’s 2006 supplemental evaluation [of Kavanaugh] 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: Tucker had been assigned to the ABA committee as the member responsible for the D.C. Circuit. Instead of focusing on the previous year–the only period of time not covered in the earlier evaluations–Tucker launched a scorched-earth 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 judiciary 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 but instead enlisted a second committee member–liberal civil-rights activist John Payton–to assist her.

There’s ABA balance for you:  teaming up a liberal civil-rights activist with a liberal gender activist!


And here’s another excerpt, on the ABA’s explosive leak that a witness charged that Kavanaugh had “dissembled” in an oral argument:


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.

I intend to have a series of follow-up posts over the next week or so that exposes the remarkable partisan bias of individual members of the ABA committee and examines what should be done about it.

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