Bench Memos

Leahy’s Demagoguery

One of the other lowlights of today’s Senate Judiciary Committee session was suffering through more of Senator Leahy’s smarmy demagoguery. With respect to Kavanaugh’s nomination, Leahy professed himself troubled by the ABA’s “extraordinary downgrade” of its rating of Kavanaugh and said that such downgrades typically resulted in nominees being withdrawn.


Let’s review the facts:


1. When Kavanaugh was first nominated in July 2003, the 14 individuals then on the ABA’s Committee on Judicial Selection gave him an overall rating of “well qualified”. A “substantial majority” of the committee—which the ABA defines as 10 to 13 members—rated Kavanaugh “well qualified,” and the remaining 1 to 4 members rated him “qualified”.


2. When Kavanaugh was renominated in February 2005, the 14 individuals then on the ABA’s Committee gave him an overall rating of “well qualified”. Again, a “substantial majority” of the committee—10 to 13 members—rated him “well qualified,” and the remaining 1 to 4 members rated him “qualified”.


3. When procedural shenanigans by Senate Democrats required that Kavanaugh be renominated yet again in January 2006, the 14 individuals then on the ABA’s Committee gave him an overall rating of “qualified”. This time a “substantial majority” rated him “qualified” and a minority rated him “well qualified”.


Overall, then, 42 individual reviews by members of the ABA Committee have unanimously rated Kavanaugh “well qualified” or “qualified”. (Somewhere from 21 to 30 have rated him “well qualified,” and somewhere from 12 to 21 have rated him “qualified”.) Anyone who takes the ABA Committee’s ratings seriously, as Leahy purports to do, can reach only one conclusion: Kavanaugh is fully qualified for the position to which he has been nominated.

The change in Kavanaugh’s overall rating from the first two assessments to the third could result from something as modest as six new members deciding that Kavanaugh was “qualified” rather than “well qualified”. This is hardly an “extraordinary downgrade”. The most plausible explanation for the change is that the new members of the Committee simply viewed his qualifications marginally less favorably. Given that these ratings are hardly scientific, that should come as no surprise even if the new members were entirely objective. It’s to be expected, for example, that some members would be more likely than others to reserve a “well qualified” rating for older nominees. (It’s also possible, of course, that the new committee contains more ideological opponents of judicial restraint.) In any event, the relevant point is that 42 out of 42 individual reviews by members of the ABA Committee have concluded that Kavanaugh is either “well qualified” or “qualified”.


As for Leahy’s reference to the consequences of other downgrades: The one example he mentioned involved a downgrade from overall “qualified” to overall “not qualified”, and I strongly suspect that any other examples of downgrades causing withdrawal of nominations did so as well. It should hardly be surprising that a “not qualified” rating could be damaging to a nominee’s prospects. Only a demagogue or an idiot (or someone who is both) would lump Kavanaugh’s situation with such downgrades.

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