Bench Memos

NRO’s home for judicial news and analysis.

Leaks vs. Improper Claims of Confidentiality


From this article in a Mississippi newspaper, it appears that someone is trying to divert attention from the manifest flaws in the ABA’s testimony on the Wallace nomination by crying about the supposed “leaking” of that testimony to me.  At the risk of some repetition from a previous post, let me offer a few points of clarification:


1.  In submitting its testimony, the ABA made a unilateral request that the testimony “remain confidential” until the ABA committee members appeared at the hearing to testify.  The ABA offered no rationale for its request other than its “general practice,” and there is nothing confidential about the testimony.  On the contrary, it was expressly intended to be made public—and it would have been made public no later than July 19 if the ABA had complied with its commitment to submit the testimony in a timely manner.  There was no confidential material, and there was no leak.


2.  There is no justification for the ABA’s request that its testimony be kept confidential for any period of time.  Insofar as the ABA’s request was deliberate, it can be understood only as an exercise in gamesmanship designed to prevent the ABA’s critics from having a timely opportunity to examine the testimony. 


3.  There are plenty of sources other than a Senate Judiciary Committee source from whom I might have received the testimony.  These sources would include, for example, some folks at the ABA.  I will state that I did not receive the testimony, directly or indirectly, from the nominee.  Beyond that, I will say nothing on this trivial question.


4.  The status of the underlying ABA committee report that was circulated to ABA committee members is a different matter.  I readily concede that there may well be legitimate confidentiality concerns about that report.  In particular, some witnesses may speak candidly about nominees only if they are assured of confidentiality.  (Of course, some witnesses may use the same protection to lie.)  The ABA, however, has completely stiffed Chairman Specter’s entirely reasonable request that the Judiciary Committee receive that report on a confidential basis.  It should not be permitted to use the belated release of its public testimony on Wallace as an excuse not to provide its underlying report to the Judiciary Committee on confidential terms.


Tags: Whelan


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