Bench Memos

ABA Testimony on Wallace Nomination—Part 2

In this and subsequent posts, I will critique the ABA’s testimony on the Wallace nomination.  Let me make clear at the outset that I do not know Mike Wallace.  So far as I am aware, I have never met him, spoken with him, or communicated with him in any way.  My intention is not to vouch for his qualifications, but rather to examine the strength of the case that the ABA committee has presented in support of its “not qualified” rating.


Let’s begin with elementary questions of bias.  These questions take on special weight here because the ABA committee has stiffed Chairman Specter’s entirely reasonable request that the Judiciary Committee receive, on a confidential basis, the actual report that was circulated to ABA committee members and provided the basis for their votes.  The ABA committee is asking everyone to trust it, and the question is whether it deserves that trust.  I think the answer is plainly no.


Consider first ABA committee chairman Stephen Tober.  As I detailed here, in the course of his remarkably intemperate and addleheaded testimony before a Legal Services Corporation committee headed by Wallace, Tober twice incoherently accused Wallace of a “hidden agenda.”  Yes, this testimony was nearly 20 years ago, but much of the supposed evidence that the ABA committee uses against Wallace is even older.  Moreover, according to a letter from one witness in support of the Wallace nomination, current ABA president Michael Greco, at a 1989 ABA meeting, made a public attack on Wallace that was “so vicious and personal” that it offended some of the members of the ABA House of Delegates.  This witness thinks that Tober also took part in the vicious attack.  But whether or not he did, there is ample reason to believe that Tober, in addition to his own bias, would believe that a negative evaluation of Wallace would be pleasing to Greco and thus advance Tober’s own ambitions for advancement within the ABA.

As for Fifth Circuit member Kim J. Askew, who conducted the lead investigation:  Askew serves on the Board of Trustees of the Lawyers’ Committee on Civil Rights, which occupies the hard Left on matters of race and has fervently opposed leading nominees of the Bush Administration.  In January 2006, for example, the Lawyers’ Committee issued a statement opposing Samuel Alito’s nomination to the Supreme Court.  In September 2005, the Lawyers’ Committee stated that it could not support John Roberts’ nomination as Chief Justice.  Previous “action alerts” from the Lawyers’ Committee (to cite just a few) called for senators not to confirm Alberto Gonzales’s nomination as Attorney General, to oppose the federal marriage amendment, and to oppose John Ashcroft’s nomination as Attorney General.  

In the last five years, Askew’s political contributions have all been to left-wing Democrats.  She gave $1500 to Ron Kirk’s unsuccessful 2002 Senate campaign, $300 to Barbara Boxer of California, and $250 to Joe Driscoll, a MoveOn-endorsed congressional candidate in Pennsylvania.  (In 1999, Askew did give $250 to Bush for President, but in context that donation appears explicable only as the price of being in a major Dallas law firm.)

Askew was appointed to the ABA committee by Greco, as part of his obvious effort to stack its composition.

Whether or not the second investigator, Thomas Hayward, is biased against Wallace is rendered moot by the fact that Hayward did not re-interview any of the individuals interviewed by Askew but instead accepted, and relied on, her interview summaries.

The other members of the ABA committee likewise relied on Askew’s report.  Further, as my summary (with links) here shows, the committee consists heavily of Democrats with partisan ideological attachments on issues of race and gender, with a sprinkling of go-along-to-get-along token Republicans.


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