Is Stephen Tober, chairman of the ABA committee that evaluates judicial nominees, fit to play the role that left-wing ABA president Michael Greco has assigned him? Tober’s 1987 testimony before a committee of the Legal Services Corporation (a federal agency that funds legal services for the poor) powerfully answers that question with a resounding NO.
As promised, here’s a detailed account of that testimony. I provide the transcript here and will cite relevant passages by page and line. (In the passages quoted below, I have made a few trivial corrections to the transcript—e.g., correcting punctuation and changing paragraph breaks.)
In October 1987, the LSC published in the Federal Register a proposed regulation that would (among other things) have required that “[n]o more than sixty percent” of the members of the governing board of an organization receiving federal LSC funds be “of the same political party.” (By statute, a similar rule promoting bipartisan membership governs the LSC’s own board.) The proposed rule further specified that party affiliation “shall be determined by voter registration in States where voters register by party” and, in other states, “by participation in the most recent party primary, as reflected by the official voter participation roll.”
Appearing in his capacity as president-elect of the New Hampshire bar, Tober declared his strong opposition to the proposed regulation. Invoking John C. Calhoun as “an illuminating light on the issue of state rights” (160:9), he declared:
We say to you in the words of Senator Calhoun that this proposed regulation is irresponsible power. It attempts to place political bias and power judgments over the pure and simple need for legal services for the poor .… This proposed regulation, again in the words of Senator Calhoun, is inconsistent with liberty because it evades fundamental and constitutional rights and principles of those involved in the delivery process. (160:12-15, 19-22)
Tober charged the LSC committee with attempting “to fashion a political bias litmus test” that “violates at least three longstanding and traditional notions of fairness and legitimacy in government” (161:1-2, 3-5):
The first is free association, governed in the first amendment.
The second is equal protection. I ask you what rational basis is there for singling out people and asking them their political affiliation in the remotest parts of this program and politicizing the delivery of legal services. By your so doing, you have created a suspect classification of people who might wish to serve you. In our opinion, you are violating the equal protection notion of both the federal and state constitutions.
Thirdly, by your litmus paper test, you are doing violence to the state right issue that Senator Calhoun fought for and others still talk about.… What right does this board or the federal government have to tell an integrated bar, such as New Hampshire, that is governed by the state of New Hampshire’s Supreme Court, to change what we do because somebody else somewhere either within the beltway or outside the beltway thinks we are not doing it well enough.
Show me the supremacy clause argument. Show me it strongly before we are going to listen very carefully to this proposed regulation. This proposed regulation, again in the language of Senator Calhoun, corrupts those who exercise it because, quite frankly, it is infirm and ill-conceived law. [161:6-18, 161:21-162:9]
If this regulation passes, we will not honor it. We will either see you in court or we will ignore it. We are not the first northerner to talk like that. Over 100 years ago, if I may, Henry David Thoreau had similar thoughts. [163:2-5]
One need not take any position on the merits of the proposed regulation to recognize how wildly deficient Thoreau’s—oops, I mean, Tober’s—grandiose comments were. Tober’s “state rights” claim reflected no recognition that the proposed regulation would involve merely a condition on federal funding of entities. That fact alone would not immunize the regulation from attack, but it would dramatically alter the analysis. Tober’s “free association” and “equal protection” arguments were also laughably simplistic. Tober thus provided no serious foundation for his blatant threat to ignore the rule. (In later questioning, Tober confirmed his threat. See 170:8-16)
In response to a question from an LSC committee member, Tober stated that “I am indignant if you would ask me, sir, to go back and take a poll of the political affiliations of the people involved in our programs. You might as well ask me to ask them their religion. I will not do either.” (165:10-12) But the regulation (quoted above) required no such inquiry and would instead involve looking to public records to determine political affiliations.
Tober also twice incoherently accused LSC committee chairman Michael Wallace of a “hidden agenda” (179:20, 182:3)—from what I can tell, of favoring state control of—or state block grants for—the provision of legal services over local control (even though Tober himself said that New Hampshire provided state control). (See 179:13-180:2, 182:1-13)
Asked by Wallace whether he considers the New Hampshire Civil Liberties Union to be a “nonpolitical organization,” Tober answered “Absolutely.” (192:19-21)
Imagine that a candidate for a judicial nomination had presented testimony like Tober’s—intemperate, flinging half-baked constitutional assertions, threatening to break the law. Such testimony would rightly be regarded as proof that the candidate lacked the intellect and temperament for the job.
Although the standards for someone who evaluates judicial nominees need not be as high as those for the nominees, it likewise seems clear from his LSC testimony that Tober lacks the intellect and temperament for his position as ABA committee chairman. His role in Kavanaugh’s supplemental evaluation and his failure to recuse himself from the committee’s evaluation of Wallace’s pending Fifth Circuit nomination (both discussed in my Weekly Standard article) also indicate that he lacks the requisite integrity.
Stay tuned for Part 3 on Tober.