Bench Memos

ABA Testimony on Wallace Nomination—Part 8

The ABA committee’s ideological bias against Wallace is also evident in the cheap gamesmanship that it has employed against him.  Consider:


1.  The ABA committee submitted its testimony against Wallace less than 24 hours before his confirmation hearing was scheduled to begin.  It violated its own promise to Chairman Specter that it would “certainly comply with the Judiciary Committee’s rules” requiring testimony “48 hours in advance of” the hearing and that it would “do our best” to provide the testimony “more than 48 hours in advance.”  Specter had specifically informed the ABA committee that nominees “deserve time to prepare a response to whatever allegations you may raise in your testimony” and that “[w]aiting until twenty-four hours before the hearings neither gives the nominees the opportunity to respond, nor does it give Members of the Judiciary Committee adequate time to prepare.”


2.  The ABA committee stiffed Specter’s entirely reasonable request that the Judiciary Committee receive, on a confidential basis, the actual report that was circulated to ABA committee members.  The only way for Specter and his Judiciary Committee colleagues to know the negative information that the ABA committee actually relied on is to review that report.  The ABA’s denial (or, more precisely, utter non-response) to Specter’s request is not justified by its concerns about confidentiality:  Specter made clear that if the ABA had confidentiality concerns, he would require that Judiciary Committee members and staff “treat the report on a confidential basis, much as is currently done with FBI background investigation files.” 


3.  When the ABA committee did finally submit its testimony, it requested that the testimony “remain confidential” until ABA committee members appeared at the hearing to testify.  But what possible justification is there in hiding the testimony from interested members of the public?  The ABA cites only its “general practice,” but the only foreseeable effect of applying its general practice in this context would be to impair others from examining and critiquing the report in a timely way.  In other words, the ABA’s request serves its narrow interest in having others accept its negative rating of Wallace but disserves the broader public interest in determining whether its testimony is persuasive.


4.  The ABA’s testimony about its lowered rating of Brett Kavanaugh’s nomination was presented by, and solely in the name of, ABA committee chairman Stephen Tober, thus obscuring from exposure the peculiar role played by Marna Tucker, the left-wing partisan who conducted the supplemental investigation of Kavanaugh.  But on the Wallace nomination, the ABA clearly anticipated that Tober’s own bias against Wallace would be part of the story and thus submitted its testimony in the form of three combined statements—by Tober, Kim Askew, and Thomas Hayward.  (The ABA evidently counted on the facts remaining obscure on Askew’s remarkable bias.)


5.  On the Kavanaugh nomination, when Tober discovered that Marna Tucker, instead of limiting her supplemental investigation to the time since the last evaluation, had launched a scorched-earth review (including extensive re-interviewing of witnesses), he did not rein her in but instead assigned a second committee member to assist her.  But on the Wallace nomination, when the ABA’s own procedures called for a second member to conduct an investigation that would serve as a check on Askew’s investigation, Tober permitted the second member, Hayward, not to re-interview any of the witnesses Askew had interviewed but instead to rely on her interview summaries.  Some check that provided. 



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