New York City Bar Association Unable to Determine Judge Kavanaugh’s Qualifications for Supreme Court Due to Incomplete Public Record

The New York City Bar Association is unable to determine whether Judge Brett M. Kavanaugh is qualified to be a Justice of the United States Supreme Court, because the public record is incomplete on whether he possesses the personal integrity necessary to serve in that role.

The Association has been evaluating judicial candidates for nearly 140 years in a non-partisan manner based upon the nominees’ competence and merit. The City Bar assesses whether a nominee to the United States Supreme Court is “Highly Qualified,” “Qualified,” or “Not Qualified,” based on eight factors enumerated in Guidelines it has established: (1) exceptional legal ability; (2) extensive experience and knowledge of the law; (3) outstanding intellectual and analytical talents; (4) maturity of judgment; (5) unquestionable integrity and independence; (6) a temperament reflecting a willingness to search for a fair resolution of each case before the court; (7) a sympathetic understanding of the Court’s role under the Constitution in the protection of the personal rights of individuals; and (8) an appreciation for the historic role of the Supreme Court as the final arbiter of the meaning of the United States Constitution, including a sensitivity to the respective powers and reciprocal responsibilities of the Congress and Executive.

In conducting its evaluation of Judge Kavanaugh, the City Bar reviewed and analyzed information from a variety of sources, including: written opinions from his 12 years on the U.S. Court of Appeals for the D.C. Circuit; his speeches and articles; his prior confirmation testimony, both in 2004 and 2006, and during the week of September 3, 2018; press reports, blogs and commentaries; and interviews with his judicial colleagues, former clerks, and numerous practitioners.

The City Bar found that Judge Kavanaugh possessed many of the attributes that would qualify him to be a Supreme Court Justice: his written opinions span a remarkable breadth of legal topics, are clear and concise, and contain an organized, logical, and nuanced reasoning exhibiting both persuasiveness and objectivity. His rulings, in general, show faithfulness to the constitutional limitations on judicial power, and the importance of adherence to precedent. The results his opinions advocate – both those written for the majority of the Circuit and in dissent – fall across the spectrum and do not demonstrate an exclusive predisposition or ideology. Judge Kavanaugh is respectful to the litigants who appear before him and to the district courts whose decisions he has occasion to review. Uniform praise from his judicial colleagues, his former law clerks, and litigants speaks to his judgment, intellect, fairness, work ethic, and collegiality. Judge Kavanaugh has been an exceptionally capable appellate judge. 

Yet, the City Bar concluded that the record is inadequate to evaluate whether Judge Kavanaugh possesses the “unquestionable integrity and independence” necessary for it to find him qualified to become a Supreme Court Justice. Approximately 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 September 3, but were marked “confidential,” prohibiting public release. The lack of access to these documents has prevented an accurate assessment of Judge Kavanaugh’s qualifications.

Among other things, the lack of access to those documents does not allow meaningful review of whether the nominee was forthright in his 2004 and 2006 sworn testimony before the Senate Judiciary Committee when he was nominated for the DC Circuit Court of Appeals, and his testimony during the week of September 3 relating to his nomination to the Supreme Court.

Specifically, between 2001 and 2003, Republican Senate Judiciary Committee staffers appear to have improperly accessed and distributed computer files of Democratic members of the Senate Judiciary Committee relating to judicial nominations. It appears that documents recently released to the Senate Judiciary Committee show that those improperly obtained materials were shared with the nominee in 2002 and 2003, who, at that time, played an important role in advancing President Bush’s judicial nominations.

In the 2004 Senate hearings, Senators Orrin Hatch and Charles Schumer asked the nominee whether Republican staffers had ever shared, referenced, or provided him with any documents that appeared to have been drafted by Democratic staffers of the Senate Judiciary Committee. The nominee responded that he had not become aware of the matter until it had been disclosed in the media in late 2003. The nominee answered “no” when asked whether he had ever come across memos from the internal files of Democrats.

In the 2006 Senate hearings, Judge Kavanaugh was asked whether he had any indication that materials he had seen might have been stolen. He responded that he never saw the materials.

During the recent Senate Judiciary Committee hearing held during the week of September 3, 2018, it came to light – through the limited disclosure of email communications released by the White House – that, contrary to Judge Kavanaugh’s 2004 and 2006 testimony, he had received Democratic materials in 2002 and 2003 dealing with judicial nominations. When asked whether he had been provided information about what Democratic senators were planning to ask judicial nominees, Judge Kavanaugh did not directly answer whether he had received the materials, responding instead that it was very common to discuss what questions were likely to arise during judicial nominee hearings. 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. These recently released emails raise a substantial question about whether Judge Kavanaugh has testified truthfully.

The withholding of materials relating to Judge Kavanaugh’s years in the White House prevents a reliable assessment of whether he has told the truth under oath. Apparent discrepancies in the nominee’s testimony are enough to require further review. But the necessary materials to complete that review have not been released. The few materials released to the public present an incomplete version of the facts.

Notwithstanding Judge Kavanaugh’s demonstrated record as an appellate judge, the incomplete public record prevents the City Bar from determining whether he possesses the personal integrity necessary to serve as a Justice of the United States Supreme Court.

About the Association
The mission of the New York City Bar Association, which was founded in 1870 and has 24,000 members, is to equip and mobilize the legal profession to practice with excellence, promote reform of the law, and uphold the rule of law and access to justice in support of a fair society and the public interest in our community, our nation, and throughout the world. www.nycbar.org