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Brett Kavanaugh’s party-line vote in the Senate Judiciary Committee last week for a seat on the U.S. Court of Appeals for the D.C. Circuit went off precisely as expected; his confirmation by a majority of the full Senate seems just as likely. After that, the politics of judicial nominations become a lot murkier. At least two appeals court candidates being promoted hard by the White House are suddenly in trouble � and not just with Democrats. Michael Wallace, who was nominated in February for a seat on the 5th Circuit, received a unanimous “not qualified” rating from the American Bar Association. And in early May, the online magazine Salon revealed that U.S. District Judge Terrence Boyle, 60, first nominated to the 4th Circuit by President George H.W. Bush, bought stock in General Electric in 2002 while presiding over a pension lawsuit against the company. Asked after the Kavanaugh vote May 11 whether he was going to have a second hearing on Boyle, Committee Chairman Arlen Specter (R-Pa.) replied: “There is not going to be another hearing as to Judge Boyle. The question is what is going to happen to him, but he is not going to have another hearing.” Wallace’s highly unusual “not qualified” rating by the ABA’s 15-member Standing Committee on the Federal Judiciary is one of only a half-dozen or so such low ratings given to some 200 judicial nominees since 2003. It could turn out to be significant enough for the seven GOP members of the “Gang of 14″ to refuse to block a Democratic filibuster of Wallace. Formed during the judicial nomination wars of 2005, the bipartisan group of senators had agreed that the filibuster of a judicial nominee was acceptable only in “extraordinary circumstances,” a phrase that was never defined but has since been interpreted to mean that ideology alone is not sufficient to block a nominee. Asked what he thought of the ABA’s Wallace rating, Lindsey Graham, the South Carolina Republican who is a member of both the Judiciary Committee and the Gang of 14, said the “not qualified” rating could “certainly put you in the land of extraordinary.” Wallace, 54, a partner in Jackson, Miss.-based Phelps Dunbar, was a special counsel to then-Senate Majority Leader Trent Lott (R-Miss.) during the impeachment of President Bill Clinton. He has never been a judge. Specter said after the Kavanaugh vote that the ABA would be called to testify at Wallace’s confirmation hearing. The ABA rating puts Republicans in a sticky position. In 2001, President George W. Bush abandoned the long-standing practice of allowing the ABA to vet the names of judicial nominees before they were announced. At the time, many Republicans wondered why a group they considered left-leaning should play any significant role in choosing the nominee of a GOP president. But several Republican members of the Senate Judiciary Committee were singing a different tune last week. That’s because though a majority of the ABA committee voted to lower Kavanaugh’s rating from “well qualified” to just “qualified,” Republican members of the committee thought “qualified” was good enough for them. “We ought to trust what the ABA says,” committee member Tom Coburn (R-Okla.) told the committee shortly before the Kavanaugh vote. Whether the nine other Republican members of the Senate Judiciary Committee will heed Coburn’s advice in a panel renowned for its sharply partisan political views is not clear. The second time around Though committee Democrats were at times sharply critical of Kavanaugh, the 41-year-old nominee held his ground during an unusual second hearing last week. 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 Clinton. He also helped the Bush campaign 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 Bush’s staff secretary, vetting every piece of paper seen by the president. But Democrats found little to tar Kavanaugh with except his inexperience and, in several cases, an inability to answer questions directly � a problem for almost every recent judicial nominee. The committee’s ranking Democrat, Vermont’s Patrick Leahy, repeatedly asked Kavanaugh why he had taken seven months to answer written questions submitted to him after his first hearing in 2004. Kavanaugh said he took responsibility for the delay, and said it again, and again and again, until laughter could be heard in the hearing room. “Senator, I take responsibility,” Kavanaugh said. Finally, he told Leahy he thought there was no rush because the Senate had not been ready to take up his nomination. Kavanaugh’s “lack of seriousness about the confirmation process,” Leahy said two days later during the committee vote, “elicited laughter from the hearing room. But not from me.” For Republicans, the Kavanaugh hearing and committee vote was an unadulterated lovefest. “If he reflects the views consistent with the president, that’s entirely consistent with having been selected by the president,” said Specter. “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 making “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 most recent go-round earlier this year, only a minority of the 14 voting members of the committee agreed that Kavanaugh was “well qualified,” yet 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, adding that of the eight people who were on the committee for its previous recommendation, six of them switched their vote. In a May 8 telephone conference 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. 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 when Specter questioned whether Kavanaugh played any role in the White House decisions to send captured suspected terrorists overseas for interrogation, or in disgraced lobbyist Jack Abramoff’s visits to the White House, or in policy decisions affecting the detention of inmates in Guant�namo Bay, Cuba, Kavanaugh had the same answer: “No, Mr. Chairman.” Added Coburn: “Anything you don’t like about the executive branch, to try to tie it to this man is improper. . . . 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.” T.R. Goldman can be contacted at [email protected]

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