Bench Memos

ABA Testimony on Wallace Nomination—Part 6

Fifth Circuit member Kim Askew’s last set of concerns come under the rubric of courtesy.  The relevant question, it would seem, is not whether Wallace always displays the etiquette of the consummate gentleman, but whether any shortcomings in courtesy would seriously detract from his performance as a judge.  In this regard, it seems particularly important to have in mind the very different public roles of a district judge versus an appellate judge.  A district judge reigns supreme in his courtroom, and displays of discourtesy towards the lawyers, the parties (especially criminal defendants), or the witnesses have the potential to bias the jury’s judgment.  An appellate judge, by contrast, sits with two colleagues in timed oral argument by lawyers.  This difference means, I think, that shortcomings in courtesy are far less significant for appellate judges than for district judges.  In this light, I don’t think that the general allegations of Wallace’s “lack of common courtesy and respect” that Askew presents would merit much weight, even if they were true.


Askew oddly folds into her discussion of courtesy a more serious charge:  that Wallace “has on occasion been particularly disrespectful” to minority lawyers.  This charge properly would seem to relate more to the issue of freedom from bias.  But, as it happens, Askew’s misplacement serves to undermine the charge.  For if Wallace is generally as “nasty” and “mean” as the allegations that Askew presents would suggest, then it is easy to see how a minority lawyer might mistake such behavior, when he or she encounters it, as racially based. 


Askew’s account finesses this problem by presenting allegations, from both minority and non-minority lawyers, of disparately poor treatment of minorities by Wallace.  This picture, which supposedly rests on details that Askew wouldn’t disclose to Wallace (and which therefore, under the ABA’s rules, shouldn’t be part of the case against him), is sharply at odds with what we know from other sources.  For example, former Mississippi supreme court justice Reuben V. Anderson, who is African-American, has been a law partner of Wallace’s for 15 years in an office that “has more African-American lawyers than any other firm in Mississippi.”  According to Anderson, President Bush “could not have picked a finer person or a better lawyer” for the Fifth Circuit vacancy.  Moreover:


“Just as our law firm has a commitment to racial diversity, Mike does likewise.  He has been helpful in recruiting African-American lawyers to our firm and in fact our law firm has been recognized nationally for its accomplishments in the diversity arena.  In 2005 Mike traveled to San Francisco to accept our National Diversity Award given by the DRI.”


Similarly, a non-minority friend of Wallace’s for 25 years, who has had lots of casual time with him, tells me that he has never heard Wallace make a racially disparaging remark.  And Wallace travels each summer to Honduras with members of a black church to work with them on building homes for the poor.



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