Bench Memos

Kavanaugh and the ABA

In advance of this afternoon’s hearing, I have a few comments on the ABA’s statement yesterday on Brett Kavanaugh’s nomination to the D.C. Circuit.  (I have a copy of the statement but have not been able to locate an online link.)  These comments supplement my earlier post, which explained (as the ABA’s statement also does) the modest nature of the change in Kavanaugh’s ABA rating.


1.  Kavanaugh’s latest rating—overall “qualified”—consists of a “substantial majority” of the ABA committee finding him “qualified” and a minority finding him “well qualified”.  As the ABA statement explains, the difference between “well qualified” and “qualified” is “the difference between the ‘highest standard’ and a ‘very high standard’”.  Specifically, the “qualified” rating “means that the nominee meets the Committee’s very high standards with respect to integrity, professional competence and judicial temperament and that the Committee believes that the nominee will be able to perform satisfactorily all of the duties and responsibilities required by the high office of a federal judge.”


Thus, what is most significant about the committee’s recent rating is that all the members of the committee have found that Kavanaugh, at the very least, meets these “very high standards”.  No noise about the modest change in Kavanaugh’s rating from “substantial majority well qualified, minority qualified” to “substantial majority qualified, minority well qualified” should obscure the ABA’s bottom line.


2.  It seems to me unfair to Kavanaugh for the committee to have made public a handful of anonymous negative statements without also disclosing some of the much larger universe of very positive statements that underlie the ABA’s rating.


3.  As this Washington Times article makes clear, there are serious reasons to question the objectivity and fitness of Marna Tucker, the new D.C. Circuit representative on the ABA committee who led the supplemental investigation of Kavanaugh:

Washington divorce lawyer Marna S. Tucker, a registered Democrat, conducted the most recent interview of Mr. Kavanaugh and delivered testimony on behalf of the ABA over the telephone yesterday for the Judiciary Committee hearing today.

Ms. Tucker has donated more than $10,000 to Democratic candidates and causes, according to Federal Election Commission records at, a Web site that tracks campaign contributions. She has never given to Republicans, according to the site.

The Washington Post described her as a “prominent liberal” in 1991 and the following year noted her friendship with Hillary Rodham Clinton, now a Democratic senator from New York.  

Ms. Tucker also is a founding member and board director of the National Women’s Law Center, an organization committed to abortion rights and other liberal causes.

The fact that Ms. Tucker is a divorce lawyer is striking.  I can’t think of a specialty that has less relation to the work of the D.C. Circuit.  It is bizarre that, with all the attorneys in D.C. who have practices that relate to the D.C. Circuit, the ABA would pick a divorce lawyer to be the D.C. Circuit representative.

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