Contradictory ABA Letters Reflect Divisiveness of Our Country

by Tina Batra Hershey, JD, MPH, and Elizabeth Van Nostrand, JD

Crossroads: Law and Public Health addresses topics related to the intersection of law and public health. This series highlights the perspectives of two attorneys turned academicians and explores legal and policy issues that impact public health.

ABA LettersAs the entire nation is aware, Dr. Christine Blasey Ford accused President Trump’s Supreme Court nominee, Brett Kavanaugh, of sexual assault that allegedly occurred in the summer of 1982. The September 27th Senate Judiciary Committee hearing was not intended to adjudicate the merits of the claims; rather, the hearing was to determine whether Judge Kavanaugh has the characteristics consistent with those of Supreme Court Justices.     

During his emotional testimony, Judge Kavanaugh vigorously denounced the accusations and repeatedly referenced his unanimous, well-qualified rating from the American Bar Association in support of his qualifications to sit on the nation’s highest court. Senator Lindsay Graham (R-SC) also referenced the ABA’s rating during his now-famous tirade in defense of Judge Kavanaugh.

Perhaps in reaction to the claims of Judge Kavanaugh and Senator Graham, the ABA issued a letter later that same day urging the Senate Judiciary Committee and the full Senate to table voting on Judge Kavanaugh’s nomination until after an FBI investigation into Dr. Ford’s allegations. The letter states:

We make this request because of the ABA’s respect for the rule of law and due process under law. The basic principles that underscore the Senate’s constitutional duty of advice and consent on federal judicial nominees require nothing less than a careful examination of the accusations and facts by the FBI.

Each appointment to our nation’s Highest Court (as with all others) is simply too important to rush to a vote. Deciding to proceed without conducting additional investigation would not only have a lasting impact on the Senate’s reputation, but it will also negatively affect the great trust necessary for the American people to have in the Supreme Court. It must remain an institution that will reliably follow the law and not politics. (emphasis added)

The following day, however, the ABA’s Standing Committee on the Federal Judiciary issued its own letter to clarify its position regarding Judge Kavanaugh, stating:

The correspondence by Robert Carlson, President of the American Bar Association, of September 27, 2018, was not received by the American Bar Association’s Standing Committee on the Federal Judiciary prior to its issuance. The Standing Committee on the Federal Judiciary acts independently of ABA leadership.

The Committee conducts non-partisan, non-ideological, and confidential peer review of federal judicial nominees. The ABA’s rating for Judge Kavanaugh is not affected by Mr. Carlson’s letter. (emphasis added)

These two letters, seemingly contradictory, reflect the current divisiveness in our country. ABA President Robert Carlson has been excoriated by some for inserting his own politics into ABA affairs. Others, however, point out that the ABA’s Standing Committee on the Federal Judiciary has had reservations about Judge Kavanaugh in the past. Indeed, in 2006, during Judge Kavanaugh’s initial confirmation process to sit on the federal bench, the ABA Standing Committee on the Federal Judiciary downgraded him from “well-qualified” to “qualified” because of concerns regarding his temperament and his ability to be fair and balanced when rendering decisions.

Yale Law School, Judge Kavanaugh’s alma mater, joined the chorus of those calling for further investigation into the serious allegations. A last-minute change of heart by Senator Jeff Flake (R-AZ) forced Republicans on the Senate Judiciary Committee to call for an FBI investigation, which the White House ordered last Friday. Such investigation must be completed by October 5.

It is undeniable that Judge Kavanaugh, his family, and Dr. Ford are under tremendous pressure, stress, and attack; however, a lifetime appointment on the Supreme Court demands a judicious temperament, courtesy, and freedom from bias. Justices are not apolitical; rather, they are required to set aside their politics when considering legal questions. Judge Kavanaugh’s accusations regarding liberal interest groups and the Clintons, as well as his blatant disrespect towards Democratic Senators on the Senate Judiciary Committee during last week’s hearing, are troubling at the least, disqualifying at the most. Currently, there are murmurings that the ABA Standing Committee on the Federal Judiciary should re-open its evaluation of Judge Kavanaugh, claiming that his lack of impartiality was apparent from his testimony. Two of Judge Kavanaugh’s Yale Law classmates who had previously vouched for him, praising his judicial temperament, withdrew their support this week due to the partisan nature of his testimony. And more than 500 law professors from almost 100 law schools around the country have signed a letter to the Senate stating that Judge Kavanaugh “displayed a lack of judicial temperament that would be disqualifying for any court, and certainly for elevation to the highest court of this land.”

Investigating Dr. Ford’s allegations to discern the truth from decades ago may be an untenable endeavor and the results are not likely to heal the wounds revealed by last week’s hearing. The investigation, however, may help to save the image of the Supreme Court and the public’s trust in the institution. Regardless of the outcome of the FBI investigation, the ABA Standing Committee on the Federal Judiciary should carefully consider its rating of Judge Kavanaugh. Our country deserves to have the integrity and impartiality of Supreme Court justices serve as an example of decorum, impartiality, and non-partisanship. Certainly, Judge Kavanaugh’s behavior in front of the Senate Judiciary Committee last week did not exhibit the qualities our country desires and needs on its highest court.

Tina Batra Hershey, JD, MPH

Tina Batra Hershey, JD, MPH, is an Assistant Professor, Health Policy and Management, at the University of Pittsburgh Graduate School of Public Health and an Adjunct Professor at the University of Pittsburgh School of Law. She is also the Assistant Director for Law and Policy at the Center for Public Health Practice at Pitt Public Health, where she researches legal, policy, and ethical issues related to the delivery of health care and emergency preparedness. [Full bio].

(Photo: Univ. of Pittsburgh Center for Teaching and Learning, Photographic Services)



Elizabeth Van Nostrand, JD

Elizabeth Van Nostrand, JD, is an Associate Professor and the Director of the MPH and JD/MPH Programs in the Department of Health Policy and Management at Pitt Public Health, an Adjunct Professor in the School of Law, a recent Robert Wood Johnson Foundation Fellow, Director of Pitt Public Health’s JD/MPH program, and Principal Investigator/Director of the Mid-Atlantic Regional Training Center. [Full bio].

(Photo: University of Pittsburgh Graduate School of Public Health)




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