Politics & Government

'He has guts': David Bunning, the same-sex marriage decision's unlikely enforcer

Rowan Co. Clerk Kim Davis, with leg shackles visible, was led away in custody from the Carl D. Perkins Federal Building in Ashland, Ky., Thursday, September 03, 2015. Rowan Co. Clerk Kim Davis was found in contempt of court by U.S. District Judge David Bunning for refusing to issue marriage licenses in Rowan Co. Before the hearing, groups of protestors and supporters gathered in front of the building. Photo by Charles Bertram | Staff
Rowan Co. Clerk Kim Davis, with leg shackles visible, was led away in custody from the Carl D. Perkins Federal Building in Ashland, Ky., Thursday, September 03, 2015. Rowan Co. Clerk Kim Davis was found in contempt of court by U.S. District Judge David Bunning for refusing to issue marriage licenses in Rowan Co. Before the hearing, groups of protestors and supporters gathered in front of the building. Photo by Charles Bertram | Staff Herald-Leader

Judge David L. Bunning stared across the courtroom at Rowan County Clerk Kim Davis for the second time in as many months. In the drawn-out legal saga surrounding her refusal to issue marriage licenses to gay or straight couples, this was the end of the road.

Bunning would charge Davis with contempt and sentence her to jail time, rather than fines that she could potentially pay without complying with the court's order. Her deputy clerks would also have 30 minutes to decide whether they would comply or face jail time themselves.

After hearing both sides inside a federal courtroom in Ashland, Kentucky, the 49-year-old judge made his decision: The devout Catholic and son of former U.S. senator and Hall of Fame pitcher Jim Bunning became the first U.S. judge to issue a jail sentence to enforce the Supreme Court's ruling that made gay marriage legal across the country.

Bunning's decision Thursday came at a pivotal juncture in the gay marriage debate that has divided the country along starkly partisan lines. But notably, it has been the decisions of a Republican judge appointed by a Republican president, George W. Bush, in a conservative state that have halted the latest effort to use religious freedom objections to the ruling.

"Personal opinions, including my own, are not relevant to today," Bunning, a federal district judge, told Davis and the courtroom Thursday. "The idea of natural law superseding this court's authority would be a dangerous precedent indeed."

In addition to sending Davis to jail, Bunning also ordered five of her six deputy clerks to begin issuing marriage licenses to all couples on Friday. The deputies agreed, under oath.It is the kind of historic moment that most judges will never see, and it was unfolding inside the courtroom of a man who some people believed, 13 years ago, shouldn't have been on the bench in the first place.

One such person was Ohio attorney David Weiner, who in 2001 was tasked with helping the American Bar Association make a recommendation to the U.S. Senate about whether Bunning was fit to be a federal judge.

At the time, Bunning was just 34 — unusually young for such an important post.

"This guy was very young; he had a hard time having enough experience to be qualified," Weiner told The Washington Post. "I wasn't qualified at 35 to be a federal judge."

Weiner presented his decision to the ABA in a scathing report that said Bunning was "not qualified." He argued that it wasn't Bunning's age or lack of experience, but rather his short and undistinguished service (Bunning had worked for a decade as a federal prosecutor) and lack of "intellectual spark or legal enthusiasm."

Weiner also noted that Bunning's legal writings "read very much like the work of a young associate in our firm" — and he assailed Bunning's "lack of academic achievement" at the University of Kentucky, which he attended for both his undergraduate and law degrees.

"Although the university is a fine institution, its law school is not highly ranked," Weiner said at the time. "Thus, the nominee's middle-of-the-class law school record does not speak well for him."

A second lawyer working on behalf of the ABA did his own report and found Bunning to be qualified.

But the association's judicial committee voted and decided, after taking both reports into consideration, that Bunning was "not qualified" for the lifetime appointment to the bench — a "watershed event" according to Weiner.

Weiner said this week that he stood by his decision, which was a snapshot of that time.

And Bunning had an out: he could have quietly withdrawn his name from consideration without anyone knowing that the ABA declined to endorse him. In Weiner's time reviewing judicial candidates on behalf of the ABA, all other candidates who had been deemed "not qualified" withdrew their nominations.

"Bunning decided to stay with it, partly — and this is speculation — because he was influenced by the fact that his father was a United States senator," Weiner said. "He was a big deal guy . . . Hall of Famer . . . no-hitter."

The elder Bunning actually pitched a perfect game for the Philadelphia Phillies on Father's Day 1964, years before he began his career in politics — and two years before David Bunning's birth.

The night before David Bunning's Senate Judiciary Committee confirmation hearing, in 2002, he grabbed dinner with a longtime acquaintance, Rick Robinson, who had worked for Jim Bunning when he was a lawmaker in the U.S. House of Representatives.

The two men went to a restaurant in Old Town Alexandria, Virginia, but they didn't talk about the impending confirmation hearing, Robinson recalled. Instead, they talked about baseball.

"We weren't there to talk about the Senate; we weren't there to talk about the hearing," said Robinson. "We were just there to, you know, shoot the bull."David Bunning was confirmed unanimously by the Judiciary Committee — and then by the full Senate, on Feb. 14, 2002. He was sworn in shortly thereafter as U.S. District Court Judge for the Eastern District of Kentucky.

On Thursday, Bunning sat on the bench in the Carl D. Perkins Federal Building in Ashland wearing a blue and white polka-dot bow tie, the colors of the University of Kentucky, where his nephew Patrick Towles is now quarterback. Towles's mother, Amy, is Bunning's twin sister.

The Bunning family — including Jim Bunning's nine children — is a prominent one, not just in the state of Kentucky, but among conservative Republicans.But throughout Davis's months-long legal battle, David Bunning has made it clear that he knew his decision to force the Rowan County clerk to follow the law put him at odds with the deeply held personal beliefs of a lot of Americans, himself included.

"Our form of government will not survive unless we, as a society, agree to respect the U.S. Supreme Court's decisions, regardless of our personal opinions," Bunning wrote last month in his decision ordering Davis to begin issuing marriage licenses. "Davis is certainly free to disagree with the court's opinion, as many Americans likely do, but that does not excuse her from complying with it. To hold otherwise would set a dangerous precedent."

Mary Bunning told the Cincinnati Enquirer that her son's decision wasn't surprising.

"David is an honest person," she said. "He doesn't agree with the Supreme Court but has to obey the law."

Mark Guilfoyle, a Kentucky attorney and Democrat who grew up with Bunning, told the newspaper that his old friend "leaves his political views at home."Reacting to the judge's decision, Kim Davis's husband, Joe, slammed Bunning on Friday.

But Phil Taliaferro, an attorney in Kentucky and a Democrat, said in his time as a judge, Bunning has become known for what he's lacked — namely any evidence of the "black robe syndrome," or egotism on the bench.

He's not "nasty to people," said Taliaferro, who added that Bunning garners deep respect from members of the legal community and fellow Kentuckians."He has guts," Taliaferro said. "He will do the right thing, regardless. That's the reason he has such great respect. . . . He'll follow the law, and I know this sounds funny, but he will fight for justice.

"Even though his father's a Republican," Taliaferro added, before telling a Post reporter that she didn't have to include that in this article.

Thirteen years later, Bunning has also won over one of his more prominent critics.

Bunning's rulings in this case aren't a surprise, said Weiner, the attorney who once called him "not qualified" for the federal bench.

"The people I've talked to have all said that he's a very thoughtful judge," Weiner said. "He has followed the law and has done a very good job."

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