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Tuesday, December 11, 2001

Judges back Bunning nomination




By Derrick DePledge
The Cincinnati Enquirer

        WASHINGTON — Three federal judges from Kentucky told the Senate on Monday that David Bunning has the intellect, temperament and experience to join them on the federal bench, contradicting a report by the American Bar Association that found Mr. Bunning is not qualified for the lifetime appointment.

        President Bush nominated Mr. Bunning, an assistant U.S. attorney in Covington and the son of Sen. Jim Bunning, R-Ky., as a federal judge for the Eastern District of Kentucky.

        The nomination hit a bump in October when the ABA questioned Mr. Bunning's qualifications.

        At a confirmation hearing Monday before the Senate Judiciary Committee, the ABA's conclusion was challenged as an inaccurate portrayal of a federal prosecutor with 10 years of experience in civil and criminal cases.

        “I can spot a district judge when I see one,” said Judge Henry Wilhoit, the senior federal judge in the Eastern District, who testified with Judge Karl Forester and Judge Joseph Hood.

        “David Bunning is a man of substance,” Mr. Hood said.

        Mr. Bush, ending a practice that began in the Eisenhower administration, decided not to submit potential judicial nominees to the ABA for review before sending the nominations to the Senate for confirmation. The ABA, however, still investigates judicial nominees and presents its findings to the Senate.

        The ABA has reviewed 64 of the president's nominees, and only Mr. Bunning has been singled out as unqualified.

        David Weiner, a Cleveland attorney who conducted the investigation on Mr. Bunning, said the nominee does not have the 12 years of legal experience the group usually prefers for federal judges, has a “limited and shallow” background in complex civil cases, and has dealt with criminal cases that do not demand “particularly challenging lawyering.”

        Mr. Weiner also described Mr. Bunning's legal writing style as “plain” and suggested that his academic achievement was limited because of his “middle-of-the-class” record at the University of Kentucky, where he said the law school is not highly ranked.

        The ABA assigned another lawyer, Judah Best of Washington, D.C., to review Mr. Weiner's scathing findings, and he came to a different conclusion. Mr. Best found that Mr. Bunning was a competent and respected prosecutor but that his nomination had suffered from what he described as “background chatter.”

        Some in the Kentucky legal community, Mr. Best said, complained that Mr. Bunning's father had a role in the nomination, that there was a better candidate in Kentucky for the job, and that, at 35, Mr. Bunning may be too young for the federal bench.

        But Mr. Best said those criti cisms were distractions that should not disqualify Mr. Bunning.

        “He stands above the crowd,” Mr. Best said.

        Asked by Sen. Patrick Leahy, D-Vt., the chairman of the committee, whether he would recommend Mr. Bunning for a similar position in New York or California, Mr. Best said he was not sure he would, but that Mr. Bunning was qualified to be a judge in Kentucky.

        The ABA's judiciary committee ultimately agreed with Mr. Weiner's recommendation that Mr. Bunning was not qualified.

        Sen. Orrin Hatch, R-Utah, said confidentiality agreements that keep much of the ABA's reviews secret fuel claims its findings are “arbitrary, capricious and maybe tainted by politics.”

        Sen. Mitch McConnell, R-Ky., said senators would have to contrast the ABA's conclusion with the support and character references of people who have worked with Mr. Bunning in Kentucky.

        “It must be emphasized that David's experience is in precisely — precisely — the type of matters that constitute the majority of cases that federal judges in the Eastern District must hear,” he said.

        Under questioning, Mr. Bunning, whose wife, Kay, and parents were in the audience, said he was a hard worker who values fairness and equal treatment under the law.

        “I believe that the nature and depth of a nominee's experience are more relevant than the amount of time I've been a lawyer,” he said.

        The committee has not sched uled a vote on the nomination, but Mr. Bunning is expected to be confirmed. Mr. Leahy was the only Democrat to attend the hearing Monday, and no senator strongly objected to Mr. Bunning's background or experience.

        Sen. Bunning said he was nervous and emotional watching his son testify but was pleased that the Kentucky judges — and a former U.S. attorney who used to supervise the younger Mr. Bunning — spoke on his son's behalf.

        “It helps to make a firmer case for Dave,” the senator said.

       



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