Bench Memos

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ABA Testimony on Wallace Nomination—Part 5


Next comes Fifth Circuit member Kim Askew’s discussion of concerns about Mike Wallace’s “open-mindedness” and “freedom from bias.”  If there’s anything here that’s not just a repackaging of the concerns about presentation of concerns about whether Wallace is committed to equal justice under law, I don’t see what it is.  Indeed, Askew’s observation that many of the commenting lawyers “said they had reached this conclusion after being in a variety of cases with Mr. Wallace—civil rights, commercial, and products liability” seems just an obfuscating way of saying that these complaints came from lawyers on the other side of Wallace in civil-rights cases. 


What is striking about Askew’s discussion (here as well as in much of the “commitment to equal justice” section) is how she has violated the ABA committee’s own stated procedures.  Those procedures state:


“If information adverse to the nominee is discovered, the circuit member will advise the nominee of such information if he or she can do so without breaching the promise of confidentiality.  If not, the Committee will not consider those facts in its evaluation unless the persons disclosing them authorize disclosure, or the information is otherwise known by, and discussed with, the nominee.”


The ABA’s testimony repeats ad nauseum what it wrote in a June 30 letter to Chairman Specter:  that Wallace was “fully apprised of any negative information the Standing Committee relied upon to support its evaluations” and that he had “a full opportunity to rebut the adverse information and provide any additional information bearing on it.”  The only sensible meaning of this statement is that Wallace had, at the very least, been told any such unfavorable allegations with sufficient specificity to enable him to understand them and respond to them.  But Askew repeats vague allegations (as on pages 18 and 20) while stating that “I cannot reveal the details of the cases” and “I could not provide Mr. Wallace with any further details on the identities of lawyers or the names of cases without violating the confidentiality requirements upon which the interviewees relied.”  Well, if that’s the case, Askew was obligated, under the committee’s own procedures, not to include them in the report that she circulated to her fellow committee members.


Just as it did with respect to Brett Kavanaugh’s nomination, the ABA committee has violated its own procedures, to the nominee’s detriment, and then made false statements to obscure its violations.


Tags: Whelan


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