Bar Association Questioned Kavanaugh’s Temperament and Honesty in 2006

WASHINGTON — When Brett Kavanaugh was preparing for his second confirmation hearing for a seat on a federal appeals court in 2006, he got some unwelcome news. The American Bar Association, which had earlier given him its highest rating, had reconsidered.

The revised rating, the group explained, was prompted by new concerns about Kavanaugh’s demeanor and veracity, foreshadowing some critiques of his testimony last week before the Senate Judiciary Committee in response to accusations of sexual misconduct.

The bar association’s new rating in 2006 — “qualified” instead of “well qualified” — was still quite positive. It meant, the committee explained, that Kavanaugh had met its “very high standards with respect to integrity, professional competence and judicial temperament.”

The revised rating was a minor blemish on a glittering résumé, and it was discounted by conservatives who viewed the bar association as a liberal interest group. The group’s concerns did not prevent Kavanaugh from being confirmed that year to the U.S. Court of Appeals to the District of Columbia Circuit. And when he was nominated for the Supreme Court this summer, the bar association unanimously rated him “well qualified,” although Robert Carlson, the association’s president, called last week for “a thorough FBI investigation” before a Senate vote.

But the group’s 2006 statement, based in large part on confidential interviews, has received renewed attention in light of recent questions about Kavanaugh’s temperament and truthfulness.

“The 2006 interviews raised a new concern involving his potential for judicial temperament,” Stephen Tober, the chairman of the bar association’s standing committee on the federal judiciary, told the Judiciary Committee at the time.

Tober summarized a handful of unflattering comments from unnamed judges and lawyers to support that conclusion. One judge called Kavanaugh simultaneously unprepared and sanctimonious. A lawyer said he had dissembled in his handling of a case. A third interviewee questioned Kavanaugh’s “ability to be balanced and fair should he assume a federal judgeship.”

In an interview this week, Tober declined to elaborate on his 2006 statement, citing confidentiality concerns, and he said he did not have a copy of the interview reports.

The 2006 statement was the outlier of the four ratings the bar association gave Kavanaugh. When President George W. Bush first nominated Kavanaugh to the appeals court in 2003, he received the same “well qualified” rating that he received this year.

“Kavanaugh had stellar credentials, a stellar intellect and his writing and briefs were stellar in 2003,” said Pamela Bresnahan, who helped conduct a 2003 review of Kavanaugh and was the committee’s chairwoman until recently. “But he was off the charts, by our criteria, by the time 2018 rolled around.”

If there was a concern early on, she said, it was that Kavanaugh was just 38 in 2003. “The biggest criticism was that he wasn’t old enough,” she said. “He didn’t have enough years at the bar. That was the only rap on him.”

Republican senators trumpeted the bar association’s “well qualified” rating at his first confirmation hearing, in 2004. The rating was “the gold standard,” said Sen. John Cornyn of Texas.

Sen. Jeff Sessions of Alabama, now the attorney general, said the rating counted even more given its source. “The American Bar Association, which is certainly a liberal political institution, in my view, has rated you the highest rating, ‘well qualified,’ ” Sessions told Kavanaugh.

Some studies have indeed concluded that the bar association tends to favor the nominees of Democratic presidents.

Kavanaugh’s first nomination stalled. The bar association committee reaffirmed its “well qualified” rating in 2005, but then downgraded it in 2006.

Tober told the Judiciary Committee at the time that the downgrade was a consequence of a deeper investigation. The universe of people contacted had widened, he said, from 55 to 91, and he rejected the suggestion that politics or changes in his committee’s personnel were to blame. At least six members who had been on the committee in 2005 changed their votes from “well qualified” to “qualified,” he said.

The committee’s conclusions are hard to evaluate, as Tober’s statement included only a few scattered comments from unnamed individuals.

“Mr. Kavanaugh did not handle the case well as an advocate and dissembled,” one lawyer said. A judge called one of Kavanaugh’s oral arguments “less than adequate” and “sanctimonious.” Another person interviewed said Kavanaugh was “immovable and very stubborn and frustrating to deal with on some issues.”

The bar association’s representatives provided a little more information in a conference call in 2006 with senators and their aides. In particular, they described an interview of Kavanaugh conducted by Marna Tucker and John Payton.

Tucker, a Washington lawyer, declined to comment, citing confidentiality rules. Payton died in 2012.

In a transcript of the conference call, Tucker raised concerns about documents concerning judicial nominations stolen from the computer servers of Democratic lawmakers and passed along to Kavanaugh when he worked in the White House Counsel’s Office. He has said he did not know the documents had been stolen.

Tucker said she was surprised by Kavanaugh’s attitude when she asked him about the matter.

“He did not express any concern that the process had been compromised or that there was the need for a White House investigation,” she said. “We were concerned about his lack of interest in that particular matter, considering we felt that the process for which he was responsible had been tainted.”

At his 2006 confirmation hearing, Kavanaugh embraced the bar association’s evaluations, noting that he had been evaluated three times.

“And each time,” he said, “there were 14 individual reviews conducted by members of the committee. So there have been a total of 42 separate reviews conducted of me based on interviews with lots of people and review of lots of record. All 42 have found that I’m well qualified or qualified to serve on the D.C. Circuit Court of Appeals. So I’m pleased with that and I’m proud of that.”