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Senate Democrats got their wish Tuesday for another hearing on the nomination of Brett Kavanaugh to the U.S. Court of Appeals for the D.C. Circuit, this time armed with fresh information about the American Bar Association’s decision to slightly downgrade its recommendation of the 41-year-old nominee. Nonetheless, it is widely expected that the Senate Judiciary Committee will vote Thursday along strict party lines to send Kavanaugh’s nomination to the floor for a full Senate vote. Kavanaugh has been a lightning rod for Senate Democrats since he was first nominated in 2003, derided as too young, too inexperienced, and too partisan. Kavanaugh most famously worked for Kenneth Starr in the Office of Independent Counsel during Starr’s investigation of President Bill Clinton. He also helped the Bush White House during the controversial 2000 presidential election, went on to work in the Bush White House counsel’s office, and, for the past two years, has been President George W. Bush’s staff secretary, vetting every piece of paper seen by the president. Republicans, including Judiciary Committee Chairman Arlen Specter (R-Pa.), lauded Kavanaugh’s achievements and said his nomination was appropriate. “If he reflects the views consistent with the president, that’s entirely consistent with having been selected by the president,” said Specter. He added, “The only difference between Mr. Kavanaugh’s tenure on the [Yale] law journal and mine is that when he was there the competition was tougher.” Both Specter and Kavanaugh were editors of the Yale Law Journal. Specter said he was also impressed by the hiring of Kavanaugh by Chicago-based Kirkland & Ellis, “not as an equity partner — it’s all complicated with law firms — but as a nonequity partner.” And he derided the ABA’s change in its recommendation as “not a tinker’s bit of difference.” A majority of the ABA’s Committee on Judicial Selection had twice before given Kavanaugh a “well-qualified” recommendation. But on its last go-round earlier this year, only a minority of the 14 voting members of the committee agreed that Kavanaugh was “well qualified,” while anywhere from 10 to 13 members of the committee, a so-called substantial majority, determined that he was “qualified.” “It was a flip from the last vote,” said Robert Evans, who heads the ABA’s Washington office, in an interview Monday, adding that of the eight people who stayed on the committee from its previous vote, six of them switched their vote.
RELATED STORIES
• Dems Stall Senate Vote on Kavanaugh (May 1, 2006)• Downgrading Brett: ABA Rating of Kavanaugh Lowered (April 10, 2006)• The Next Generation (March 6, 2006)

In a telephone conference Monday with Democratic members and staff of the Senate Judiciary Committee, the ABA’s Stephen Tober was unusually blunt. “One judge who witnessed the nominee’s oral presentation in court commented that the nominee was �less than adequate’ before the court, had been �sanctimonious,’ and demonstrated �experience on the level of an associate,’ ” he said in a prepared statement. Committee Republicans, however, did not blanch at the ABA’s testimony, preferring instead to focus on the fact that the bar association committee nonetheless all found Kavanaugh “qualified” — that is, “meeting the committee’s very high standards with respect to integrity, professional competence, and judicial temperament.” “Everybody on the ABA committee says you’re qualified, and I just read what it means,” said an angry Sen. Tom Coburn, the conservative Oklahoma Republican. “Anything you don’t like about the executive branch, to try to tie it to this man is improper,” he added, “and I’ll say it again: This is exactly what the American people are sick of. We’re here to give a second look to somebody who’s already answered the questions.” Judiciary Committee Democrats had clamored for a second hearing on Kavanaugh so that they could question him about several controversial Bush administration issues that had come to light since Kavanaugh’s first hearing, in 2004. But to Specter’s questions about whether Kavanaugh played any role in the White House’s decision to send captured suspected terrorists overseas for interrogation, or disgraced lobbyist Jack Abramoff’s visits to the White House, or policy decisions affecting the detention of inmates in Guant�namo Bay, Cuba, Kavanaugh had the same answer: “No, Mr. Chairman.” Kavanaugh, who appeared with the traditional judicial nominee retinue of wife, child, parents, and one or two more extended relatives, was introduced by the two federal appeals judges for whom he clerked: Walter Stapleton of the U.S. Court of Appeals for the 3rd Circuit and Alex Kozinski of the 9th Circuit. “I never sensed any ideology or any agenda. . . . He was not in any way pompous or any way stuck on himself,” said Kozinski. Kavanaugh, in his opening statement, told the committee that if confirmed, “I will interpret the law as written and not impose personal policy preferences, I will follow precedent in all cases fully and fairly, and, above all, I will at all times maintain the absolute independence of the judiciary, which, in my judgment, is the crown jewel of our constitutional democracy.” As the afternoon dragged on, Republicans continued to praise the nominee, while Democrats criticized Kavanaugh’s refusal to talk more expansively about his personal views or his role in certain White House policy decisions. “After all these �tough, tough’ questions, I’ll defer to Senator Feingold,” joked the committee’s ranking Democrat, Vermont’s Patrick Leahy, arriving after a round of speechifying by Alabama Republican Sen. Jeff Sessions. “You should have been here earlier to hear Senator Hatch’s questions,” interjected Specter, to general laughter. Sessions suggested that there was little left to do at this point but praise the nominee. “Well, this is the second time around,” he said.


T.R. Goldman can be contacted at [email protected].

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