Bench Memos

ABA Testimony on Wallace Nomination—Part 4

Let’s march through Fifth Circuit member Kim Askew’s presentation of concerns about whether Mike Wallace has the requisite judicial temperament.  I’ll begin where Askew begins (and where she devotes nearly half of her ten-page discussion), on the topic of commitment to equal justice.


Askew’s Exhibit A that Wallace is not committed to equal justice under law is his representation of the Mississippi Republican Party in a 1984 case, Jordan v. Winter, in which African-American plaintiffs successfully challenged a congressional redistricting plan for Mississippi on the ground that it violated section 2 of the Voting Rights Act (which had recently been amended).  Askew presents two specific charges from “lawyers”:  (1) that the position that Wallace advanced was not well-founded, and (2) that Wallace “advanced his own personal views” in a manner that “made it most difficult to resolve the case.” 


Askew somehow finds the first charge corroborated by a footnote in the court’s ruling that states that one of the arguments that Wallace advanced was “meritless”.   But in every piece of litigation, at least one side (and usually both) advances arguments that the court finds to be without merit.  That inheres in the court’s ruling for one party and against another.  Courts routinely use the word “meritless,” and it certainly carries no special sting.  Is Askew really taking the position that any attorney who makes an argument that a court finds meritless has given evidence that that attorney is not committed to equal justice under law?  Or is this a rule that she would apply only to those on the other side of her favored positions in Voting Rights Act cases?


As for the second charge:  The notion that Wallace was advancing “his own personal views” is completely unsupported by any probative evidence.  Askew says that some lawyers “felt” this, but there is nothing to indicate that the one party who would know—Wallace’s client—held that judgment.  As Askew correctly notes, the court, in later awarding attorney’s fees to the successful plaintiffs (at about 40% of the amount requested), stated that “defendants, and particularly the Republican Party [represented by Wallace], crossed the line separating hard-fought litigation from needless multiplication of proceedings, at great waste of both the court’s and the parties’ time and resources.”  But that, alas, is also true of much, if not most, litigation (especially as practiced by major law firms like Askew’s).  Again, more pertinently, there is nothing to support the alleged link between Wallace’s supposed personal views and the manner in which the litigation was handled.  So how does Wallace’s involvement in this case more than two decades ago say anything negative about his commitment to equal justice under law?


One member of the three-judge panel that decided Jordan v. Winter was Fifth Circuit judge (and longtime chief judge) Charles Clark.  As it happens, Judge Clark has written a 3-page letter to Chairman Specter and Senator Leahy supporting Wallace’s nomination.  Based on his “long personal knowledge of [Wallace’s] legal career, Judge Clark states that he is “confident” that Wallace “will make a superior judge” on the Fifth Circuit, and that he was “shocked” by the ABA’s rating of Wallace.  It seems to me that his implicit favorable view of Wallace’s performance in the Jordan litigation is entitled to far more weight than that of lawyers on the other side. 

The remaining allegations that Askew reports on this topic are even feebler.  “Lawyers” complained that in 2000 Wallace argued, unsuccessfully, for the creation of at-large districts for the election of Mississippi’s congressional representatives.  So?  Was this not responsible representation of his client’s interests?  “Lawyers” again asserted, without any cited evidence, that he was advancing his own personal position.  “Lawyers” claim that he has a “blind spot” regarding issues affecting minorities and the poor.  What’s the specific evidence?  How is Wallace supposed to be able to respond?

Here’s my favorite:  Wallace, in responding to charges that he did have a commitment to equal justice for the poor, “noted that he had represented many poor people during the early years of his practice” and “spoke extensively about his community work, including building Habitat Homes and the work he and his family had done in Honduras.”  As I understand it, Wallace travels to Honduras every summer, as part of a biracial conciliation group, to build homes for poor Hondurans.  But Askew closes her section on “commitment to equal justice” by crediting the comments of critics who, while praising that work in Honduras, complain that Wallace has “not demonstrat[ed] a similar understanding of issues related to the poor in his own community in Mississippi”!



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