PORTSMOUTH, New Hampshire — Lawyer Stephen Tober was chairman of a 2006 committee that overwhelming gave now-Supreme Court nominee Brett Kavanaugh a rating of “qualified” for a seat on the U.S. Court of Appeals.
Tober was chairman of the American Bar Association’s Standing Committee on Federal Judiciary when, in May 2006, he authored the committee’s statement supporting Kavanaugh’s nomination to the federal appeals court. But the rating was a downgrade from “well qualified” to “qualified” and Tober’s report cited a minority of unnamed legal professionals who found Kavanaugh “sanctimonious,” inexperienced and said he “dissembled.”
Tober said Wednesday he’s bound to confidentiality and cannot speak about anything involving Kavanaugh’s nomination at that time, beyond what is in the nine-page statement he wrote 14 years ago. He also can’t comment about Kavanaugh’s recent controversial confirmation process to the Supreme Court, he said.
The Portsmouth lawyer discussed the process of picking federal judges and his historic role in choosing others who are now seated on the U.S. Supreme Court. The Kavanaugh nomination to the federal appeals court, he said, was “part of the pipeline” of 60 to 70 judicial nominations that were before the committee at any given time.
The statement about Kavanaugh’s fitness for the Appeals Court 14 years ago concludes Kavanaugh “enjoys a solid reputation for integrity, intellectual capacity, and writing and analytical ability.” It reported concern about Kavanaugh’s breadth of experience and that he may have been insulated by his role as President George W. Bush’s staff secretary. Taken in context with many observed positive attributes, the 2006 statement said, Kavanaugh was found by a “substantial majority” of the committee to be “indeed qualified to serve on the federal bench.”
The statement Tober authored in 2006 noted Kavanaugh had previously been evaluated by the committee in 2003, when a majority found him to be “well qualified.” Five members of that 2003 committee remained in April 2006 when the majority then voted to downgrade his rating to “qualified,” the report notes. One reason cited in Tober’s statement about the downgrade was that Kavanaugh was evaluated by 55 legal professionals in 2003, then in 2006 a total of 91 legal contacts weighed in on his fitness for the federal bench.
“Nineteen more judges and 17 more lawyers with potential knowledge about Mr. Kavanaugh were contacted, and not all of the original 55 contacts were summarily repeated,” Tober’s statement reports.
“Thus, in 2006 a larger group of individuals was given the opportunity to share with the Standing Committee knowledge of the nominee’s, integrity, professional experience and potential for judicial temperament,” the statement reads.
It also noted some of the 2003 committee members had previously voted him to be qualified, as opposed to well qualified, but the practice is to decide by majority.
“There is no bright-line litmus test as to whether a nominee is ‘well qualified’ or ‘qualified,’” according to Tober’s statement.
The guiding publication, “The Backgrounder,” states that well qualified means a nominee is at the top of the legal profession, has outstanding legal ability and the highest reputation for integrity. Qualified means a nominee “meets the committee’s very high standards” of integrity, competence and temperament, Tober wrote.
Tober said Thursday that politics play no role in the process and interviews are conducted under an assurance of confidentiality. He’s been practicing law in the areas of acquired wealth, divorce and professional legal conduct.
As chairman in 2006, Tober said, he was a non-voting member of the 15-person committee and was charged with the “unique opportunity” of writing the statement about the committee’s findings that led to Kavanaugh’s nomination to the appeals court. He said the committee rarely wrote such statements, but did so in this case, at the request of the Senate Judiciary Committee, which sought an explanation about why Kavanaugh’s rating had been downgraded.
Tober’s statement notes that in 2003, there were concerns that Kavanaugh had never tried a case to verdict or judgement, that his litigation was always in the company of senior counsel and he had little criminal experience. In spite of that, the 2003 committee found him well qualified, the statement reports.
In 2006, Tober’s statement reported, one evaluating judge found Kavanaugh’s oral presentation in court to be “less than adequate,” reported he was “sanctimonious” and demonstrated “experience on the level of an associate.”
“A lawyer who had observed him during a different court proceeding stated: ‘Mr. Kavanaugh did not handle the case as well as an advocate and dissembled,’” according to Tober’s 2006 report.
The dictionary definition of dissembled is to “conceal one’s true motives, feelings, or beliefs.”
The 2006 statement by Tober includes a concern from one interviewee who said Kavanaugh was “insulated, understandably, to the nominee’s current position as staff secretary to the president.” Another shared that concern and found Kavanaugh “immovable and very stubborn and frustrating to deal with on some issues.”
In closing, Tober wrote in 2006, Kavanaugh received “consistently praiseworthy statements” in many areas and the majority of the committee found him qualified to serve on the federal bench.
Tober said Thursday he welcomes the chance to “shine a light on” the work done by members of the ABA’s Standing Committee on Federal Judiciary who, like himself, evaluate a steady stream of judicial candidates, for no pay, while running their own law practices.
“It’s an extraordinary committee,” dating back to President Harry Truman, who established the committee to advise presidents about nominees to the federal bench, said Tober, who practices law on Middle Street in Portsmouth.
Tober explained that through the Clinton administration, judicial nominations were sent to the committee confidentially and if problems were discovered, they were reported confidentially. He said President George W. Bush made the process public, President Barack Obama “brought it back under the tent again” and President Donald Trump once again made the process public. The exception, he said, has always been information about Supreme Court nominees, which has always been public.
Tober said the process when he was involved required all committee members, after votes were made, to return all documents for destruction. It’s his understanding that one copy is kept in “some locked fashion.”
Tober said 1,500 pages of reports pertaining to Judge Samuel Alito were generated and it’s all confidential.
“It’s an amazing amount of work,” he said.
Tober said he served on the federal judiciary committee for three years before being appointed chairman, during which time the board reviewed more than 300 federal judicial appointees. In his tenure, he said, Alito and John Roberts were appointed to the Supreme Court, and Harriet Miers was nominated and considered, but ultimately withdrew.
“It was an amazing confluence of events for a small-town lawyer from Portsmouth,” said Tober, the only New Hampshire resident to chair the committee.
In that “pipeline” of judicial nominees, Tober said, was the Kavanaugh appeals court nomination, which he described as just another one in the pipeline. To read Tober’s full 2006 report, visit https://bit.ly/2O5MtZG.