Bench Memos

The Path to ABA Leadership

In an Obama administration, the composition of the ABA’s Standing Committee on the Federal Judiciary, which rates federal judicial nominees, hardly matters, as the ABA committee will rubber-stamp nearly all Obama nominees.  Still, it’s striking that the current chair of the ABA’s committee is none other than Kim J. Askew, who led the investigation, and wrote the report, that resulted in the ABA’s thoroughly scandalous “not qualified” rating of President Bush’s 2006 nomination of Michael B. Wallace to the Fifth Circuit.  As I have written, Askew found Wallace

lacking on the highly malleable element of “judicial temperament.” Her primary argument is that Wallace’s representation of the Mississippi Republican party in a 1984 congressional redistricting case somehow indicates that he is not committed to equal justice. Lawyers, she says, charged that the position that Wallace advanced on behalf of his client was not well-founded and that he was pushing his own personal views. But it is difficult to discern any sense to these charges, much less serious evidence to support them.

Worse, it turns out that the plaintiffs’ counsel in that case was none other than the Lawyers’ Committee for Civil Rights. Thus, Askew was assessing the weight and credibility of comments made by those associated with the same left-wing group for which she serves as a trustee. Her obligation to recuse herself from the investigation and evaluation of Wallace would seem clear. For perspective, imagine this farfetched scenario: The ABA committee is controlled by conservatives, and a liberal president nominates a distinguished lawyer who has a record of pro-abortion advocacy. The ABA committee member who investigates the nominee is on the board of a national pro-life organization that has litigated against the nominee and perceives that litigation as the primary mark against the nominee. Further, both the chairman of the committee and the ABA president had publicly attacked the nominee over his involvement in a liberal cause. On the recommendation of the investigating member, the committee rates the nominee “not qualified.” Wouldn’t everyone recognize that the process was unfair and that the rating was highly suspect? The same conclusions should apply to the ABA’s rating of Wallace.

But it gets even worse. The ABA’s procedures required that Askew disclose adverse information to Wallace if she could do so without violating the confidentiality of witnesses, or, if not, that she not include the information in her report to her fellow committee members. But Askew’s testimony makes clear that she repeatedly refused to disclose to Wallace key details regarding vague allegations that she presents — but that she included the allegations in her report to the committee. Askew’s violations of the ABA’s own procedures deprived Wallace of any effective opportunity to contest and refute the charges against him.

As I have previously argued in a related essay, “the ideological partisanship, intellectual mediocrity, and institutionalized mendacity of the ABA—the ABA’s culture, so to speak—tend to degrade those who rise within its ranks.”  Only in such a culture would Askew’s performance on the Wallace nomination not prevent her elevation.

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