More on the ABA’s remarkable “not qualified” rating of Fifth Circuit nominee Mike Wallace, whose hearing is expected to take place next Wednesday, July 19:
On June 22, Chairman Specter sent a letter to Stephen Tober, chairman of the ABA’s Standing Committee on Federal Judiciary, asking that Tober “share with the [Senate Judiciary] Committee without delay the report on which its rating is based.” Specter explained that “fundamental fairness” required that the ABA not wait until just before Wallace’s hearing to dump its adverse testimony. Rather, Wallace “deserve[s] time to prepare a response to whatever allegations you may raise in your testimony,” and
“[p]romptly delivering the substance of these allegations to the Committee will allow [him] fully to respond to them in an open hearing.”
In his June 30 response letter, Tober completely stiffed Specter. Citing the Standing Committee’s written policy of discussing adverse information with the nominee, Tober asserted that Wallace was “fully apprised of any negative information the Standing Committee relied upon to support its evaluations.” Tober made the same assertion with respect to Brett Kavanaugh’s nomination, but that assertion was false. Tober further stated in his letter that the ABA will comply with the Judiciary Committee’s rules requiring that testimony be submitted 48 hours in advance of a hearing and will “do our best” to beat that deadline. But Tober did not even acknowledge, much less explain why he would not comply with, Specter’s specific request for the actual report that was circulated to Standing Committee members.
The only way for Specter and his Judiciary Committee colleagues to know the negative information that the ABA committee actually relied on is to review the report the ABA committee members received. Why won’t the ABA extend Specter that courtesy? It can’t be because of concerns about confidentiality: Specter made clear in his initial letter that if the ABA had confidentiality concerns, he would require that Judiciary Committee members and staff “treat the report on a confidential basis, much as is currently done with FBI background investigation files.”