The Washington PostDemocracy Dies in Darkness

American Bar Association to reevaluate Kavanaugh’s high rating, citing his ‘temperament’

Sen. Elizabeth Warren (D-Mass.) said Oct. 4 that the FBI investigation into Supreme Court nominee Brett M. Kavanaugh was "not full and fair." (Video: Twitter/Sen. Warren)
Placeholder while article actions load

The American Bar Association said Friday that it will reevaluate its high rating of Supreme Court nominee Brett M. Kavanaugh after his combative, tear-streaked Senate testimony last week, signaling doubts about the judge’s temperament.

“New information of a material nature regarding temperament” during the hearing prompted the reopening, the ABA said Friday.

The ABA committee that reviews federal judges awards ratings based on three criteria: integrity, professional competence and judicial temperament.

The national lawyers organization told the Senate Judiciary Committee that its team of internal reviewers “does not expect to complete a process and revote” before the anticipated final confirmation vote Saturday. The process became rancorous after Christine Blasey Ford’s allegations that Kavanaugh sexually assaulted her when both were teens.

The ABA and its committee declined to comment further about what portions of Kavanaugh’s testimony raised concerns.

Regarding temperament, the ABA says judges should have “compassion, decisiveness, open-mindedness, courtesy, patience, freedom from bias and commitment to equal justice under the law.”

Kavanaugh was combative with Senate Democrats throughout his testimony, claiming that Ford’s accusation was a vehicle of “revenge on behalf of the Clintons” and responding angrily to questions about his drinking habits.

The group gave Kavanaugh a rating of “well qualified,” the highest of three possible ratings, the ABA committee’s chairman told Congress on Sept. 7.

But that came before the sexual assault allegations. Ford went public with her accusations against Kavanaugh in a Washington Post article Sept. 16.

Votes secured for Kavanaugh's confirmation

Political affiliation and ideology are not a factor in the rating. The committee’s analysis includes evaluating judicial decisions, scholarship and interviews of dozens of fellow judges, lawyers and other peers, according to its summary of the process. The other two marks are “qualified” and “not qualified.”

This is not the first time Kavanaugh has drawn doubts from the committee.

In 2006, ahead of his nomination to the U.S. Court of Appeals for the D.C. Circuit and while carrying a “well qualified” rating, investigators concluded that there were concerns about Kavanaugh’s “professional experience and the question of his freedom from bias and open-mindedness.”

“One interviewee remained concerned about the nominee’s ability to be balanced and fair should he assume a federal judgeship,” the ABA committee chairman wrote to senators in 2006. “Another interviewee echoed essentially the same thoughts.”

A particular judge had told the ABA that Kavanaugh had been “sanctimonious” during an oral argument in court. Several lawyers considered him inexperienced, and one said he “dissembled” in the courtroom.

The committee eventually downgraded Kavanaugh to a “qualified” rating, which meant he met the ABA’s standards for the bench but was not necessarily an outstanding candidate.

His current high and unanimous rating is an achievement that Senate Republicans have been eager to note. Sen. Lindsey O. Graham (R-S.C.) called the ABA rating the “gold standard” for evaluating judges.

The ABA also called on the FBI to investigate Ford’s allegations.

The committee’s decision to review its rating on the eve of an expected final Senate vote is significant, given the last time a similar event occurred.

On Oct. 14, 1991, after testimony by Anita Hill that she was sexually harassed by Supreme Court nominee Clarence Thomas, the committee told Senate Judiciary Committee Chairman Joe Biden (D-Del.) that its rating for Thomas predated the allegations.

It would find him “not qualified” if they were proved true, according to a letter from its then-chairman, Ronald L. Olson. But, the committee conceded, it did not have a position on the conflicting testimony. Thomas was confirmed the next day.

Avi Selk contributed to this report.

Read more:

Analysis: If Kavanaugh is confirmed, impeachment could follow. Here’s how.

Why Is Lindsey Graham acting like this?