In a rare move for the bar group, the New York City Bar Association is withholding a rating of Brett Kavanaugh, President Donald Trump’s U.S. Supreme Court nominee.
The New York City Bar said Thursday that it was unable to determine whether Kavanaugh is qualified to serve on the Supreme Court “because the public record is incomplete on whether he possesses the personal integrity necessary to serve in that role.”
The city bar assesses whether a Supreme Court nominee is “highly qualified,” “qualified,” or “not qualified” based on a set of several factors. It’s rare the city bar has withheld an evaluation for a Supreme Court nominee. However, in 1991, the city bar withheld a rating for Judge Clarence Thomas, citing concerns about his appreciation of the role of the court in protecting individual rights.
In a Thursday release, the city bar said: “Kavanaugh has been an exceptionally capable appellate judge.” The bar group said it found that Kavanaugh possessed “many of the attributes that would qualify him to be a Supreme Court justice,” including that his written opinions span a breadth of legal topics and are clear and concise. The city bar said his rulings “show faithfulness to the constitutional limitations on judicial power and said the results in his opinions “fall across the spectrum and do not demonstrate an exclusive predisposition or ideology.”
Still, the city bar said the record is inadequate to evaluate whether Kavanaugh possesses the “unquestionable integrity and independence” necessary for it to find him qualified to serve on the high court. The city bar noted that about 100,000 pages of records relating to the nominee’s six years with the George W. Bush White House, first as an associate counsel, and later as the president’s staff secretary, have been withheld.
An additional 42,000 pages of documents relating to that period were disclosed to the Senate Judiciary Committee on Sept. 3, but were marked “confidential,” prohibiting public release, the city bar noted.
“The lack of access to these documents has prevented an accurate assessment of Judge Kavanaugh’s qualifications,” and a meaningful review of whether he was forthright in his 2004 and 2006 sworn testimony when he was nominated for the U.S. Court of Appeals for the D.C Circuit and in his testimony this month for his Supreme Court nomination, the city bar said.
In particular, the city bar said there is a “substantial question about whether Judge Kavanaugh has testified truthfully.” The bar group cited Kavanuagh’s testimony over the years about Republican staffers in 2001 and 2003 improperly accessing and distributing computer files of Democratic members of the Senate Judiciary Committee relating to judicial nominations.
“Judge Kavanaugh’s testimony appears to reflect a shift: in 2004 and 2006, he denied that he had ever seen the improperly obtained materials; in 2018, he denied knowing that materials he’d admittedly received had been improperly obtained,” the city bar said.
The withholding of documents relating to Kavanaugh’s years in the White House, the city bar said, prevents a “reliable assessment of whether he has told the truth under oath.”
Last year, the city bar gave Trump’s first Supreme Court nominee, Neil Gorsuch, a qualified rating.