Bench Memos

ABA Testimony on Wallace Nomination—Part 3

Let’s take a careful look at Fifth Circuit member Kim Askew’s account of her investigation in the ABA testimony.  As Askew notes, here’s how the published guidelines for the ABA Standing Committee on Federal Judiciary—commonly referred to as the Backgrounder—address the topic of judicial temperament:  “In investigating judicial temperament, the Committee considers the nominee’s compassion, decisiveness, open-mindedness, courtesy, patience, freedom from bias and commitment to equal justice under the law.”  In explaining her conclusion that Wallace lacks the requisite judicial temperament, Askew presents concerns that lawyers and judges she contacted had on the factors of commitment to equal justice, open-mindedness, freedom from bias, and courtesy.


One striking comment by Askew precedes her presentation of these concerns:  “Importantly,” she states, “lawyers who raised temperament concerns expressed familiarity with the Backgrounder and, without my explanation of the Committee’s criteria, raised the very elements set forth in our temperament definition.”  This point is indeed important, but not at all for any reason that Askew might be supposing.  (In context, it’s far from clear what she might have in mind.)  Either lawyers in Mississippi study and memorize internal ABA documents as though they were Scripture, or someone orchestrated a campaign against Wallace’s nomination and scripted the favored line of attack.  Only someone naïve or obtuse or biased would not recognize the latter as the obvious explanation.  But Askew plainly doesn’t.


The apparent fact that a campaign was orchestrated against Wallace’s nomination would not by itself mean, of course that those who spoke with Askew were not speaking truthfully to matters of their own knowledge.  But it would lead a competent and unbiased investigator to press hard to make sure that was the case.  Because she was plainly clueless to the issue, Askew wouldn’t have done so.


By the way, I can’t help noting that ABA president Michael Greco has stated only that he “did not express any opinion to anyone [about the Wallace nomination] during the evaluation process.”  (Emphasis added.)  It would be worth inquiring whether he expressed any opinion to anyone about the Wallace nomination between the time the nomination was announced and the time the evaluation process started.   


Much more to come on Askew’s testimony.





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