Politics & Policy

Not Credible “Whatsoever”

The ABA sinks deeper.

Among the many challenges that new White House counsel Fred Fielding will face on judicial nominations is ensuring that the American Bar Association’s ideologically stacked judicial-evaluations committee behaves responsibly. Now that Mississippi attorney Michael B. Wallace has requested that President Bush not renominate him to serve on the U.S. Court of Appeals for the Fifth Circuit, it is instructive to complete an accounting of the ABA’s thoroughly scandalous “not qualified” rating of Wallace.

Although it determined that Wallace “has the highest professional competence” and “possesses the integrity to serve on the bench,” the ABA judicial-evaluations committee found him lacking on the highly malleable element of “judicial temperament.” As I have previously documented, bias, a glaring conflict of interest, incompetence (see here and here), a stacked committee, violation of its own procedures, and cheap gamesmanship marked the ABA’s evaluation of Wallace. Those internal defects were compounded at Wallace’s September 2006 hearing by the incredible testimony given under oath — flat-out perjury, in my judgment — by the new chair of the ABA committee, Philadelphia lawyer Roberta Liebenberg. Liebenberg’s testimony merits careful scrutiny as an illustration of the depths to which the ABA will descend to defend its internal failings.

First, some background: One of the several scandals surrounding the ABA’s evaluation of Wallace relates to the fact that the chair of the ABA committee at the time of the evaluation, Stephen Tober, had had a major run-in with Wallace in 1987 when Wallace served on the board of the Legal Services Corporation (a federal agency that funds legal services for the poor and that was the focus of contentious reform efforts). In the course of strikingly intemperate and buffoonish testimony before an LSC committee headed by Wallace, Tober twice accused him of a “hidden agenda.” (The ABA president at the time of the ABA’s evaluation of Wallace, Michael Greco, and another ABA committee member, Marna Tucker, had likewise attacked Wallace over contentious LSC matters.) On the Wallace evaluation, Tober played the customary role that the ABA committee chair plays (and that is set forth in the ABA’s so-called Backgrounder): He assigned Fifth Circuit member Kim Askew — whose own biases and conflict of interest concerning Wallace are an even greater scandal — to conduct the investigation. He reviewed her draft report with her. In light of her proposed “not qualified” rating, he assigned a second person, Thomas Hayward, to conduct a second evaluation of Wallace. He reviewed Hayward’s draft report with him. He determined that he was satisfied with the “quality and thoroughness” of Askew’s investigation, and made the same determination regarding Hayward’s investigation. He then directed his committee colleagues to read Askew’s report and Hayward’s report in tandem. Without any deliberation among the committee members (so Liebenberg has informed me), Tober then received and tallied the votes of the other committee members. Under the ABA committee’s procedures, the chair votes only in the event of a tie, so Tober did not cast a vote. Tober then reported the committee’s unanimous “not qualified” rating to the Senate Judiciary Committee.

Beyond the fact that Tober plainly should have recused himself from the Wallace evaluation, many of the facts that I recite about Tober’s role are in themselves of little interest. What ought to be of considerable interest, however, to anyone who cares about the integrity of the manner in which the ABA committee carries out the privileged role in the judicial-confirmation process that the Senate Judiciary Committee accords it, are Liebenberg’s sworn statements about Tober’s role in the Wallace evaluation.

Time after time, in emphatic, categorical declarations, Liebenberg testified that it was immaterial that Tober had not recused himself because, she claimed, he simply had no role at all in the ABA committee’s evaluation of Wallace:

‐Proposition 12: Liebenberg testified at the Judiciary Committee hearing that “it is important to emphasize that Mr. Tober did not participate in any way in the rating” of Wallace (Transcript, p. 126); that Tober “did not participate in either the evaluation or the rating” (Transcript, p. 126); that “neither Mr. Tober, nor Mr. Greco participated in the evaluation or the rating of Mr. Wallace” (Transcript, p. 128); that “I would just, again, add that Mr. Tober did not participate in the evaluation” (Transcript, p. 131); that Tober, as chair of the committee, “does not oversee the evaluations” (Transcript, p. 131); and that “This is not a process where Mr. Tober had any role whatsoever in the evaluation or the vote” (Transcript, p. 134).

Liebenberg’s response (presented in the third person): “When Ms. Liebenberg testified that Mr. Tober did not ‘participate’ in the evaluation or rating of Mr. Wallace, her testimony was based on the fact that Mr. Tober did not conduct any of the evaluation interviews; was not interviewed by Ms. Askew or Mr. Hayward; did not prepare the evaluation reports or make any revisions to them; did not vote on Mr. Wallace’s rating; and did not express his own opinion of Mr. Wallace’s professional qualifications or what Mr. Wallace’s rating should be to Ms. Askew, Mr. Hayward, or anyone else on the Committee. Thus, Mr. Tober did not play a substantive role in the evaluation or rating of Mr. Wallace. Ms. Liebenberg explained to the Senate Judiciary Committee that the evaluations were the sole responsibility of Ms. Askew and Mr. Hayward, and that each of the 14 voting members of the Committee independently voted on the rating, with no influence being exercised over their votes by Mr. Tober. (transcript pp. 116, 121)”

My reply: Propositions 1-7, 9 and 10 establish that Liebenberg’s testimony was false. The transcript pages cited in her response do not put a different gloss on Liebenberg’s testimony. Indeed, they consist entirely of (unrelated) testimony by Askew, not Liebenberg.


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