[Senate Hearing 109-999]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 109-999
 
 CONFIRMATION HEARING ON THE NOMINATIONS OF MICHAEL BRUNSON WALLACE TO 
BE U.S. CIRCUIT JUDGE FOR THE FIFTH CIRCUIT AND VANESSA LYNNE BRYANT TO 
         BE U.S. DISTRICT JUDGE FOR THE DISTRICT OF CONNECTICUT 

=======================================================================

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                               __________

                           SEPTEMBER 26, 2006

                               __________

                          Serial No. J-109-115

                               __________

         Printed for the use of the Committee on the Judiciary

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                       COMMITTEE ON THE JUDICIARY

                 ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah                 PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa            EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona                     JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio                    HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama               DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina    RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas                   CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas                RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
           Michael O'Neill, Chief Counsel and Staff Director
      Bruce A. Cohen, Democratic Chief Counsel and Staff Director


























                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................   245
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania...................................................     1
    letter.......................................................   334

                               PRESENTERS

Cochran, Hon. Thad, a U.S. Senator from the State of Mississippi 
  presenting Michael B. Wallace, Nominee to be Circuit Judge for 
  the Fifth Circuit..............................................     4
Dodd, Hon. Christopher, a U.S. Senator from the State of 
  Connecticut presenting Vanessa Lynne Bryant, Nominee to be 
  District Judge for the District of Connecticut.................     5
Lieberman, Hon. Joseph I., a U.S. Senator from the State of 
  Connecticut presenting Vanessa Lynne Bryant, Nominee to be 
  District Judge for the District of Connecticut.................     7
Lott, Hon. Trent, a U.S. Senator from the State of Mississippi 
  presenting Michael B. Wallace, Nominee to be Circuit Judge for 
  the Fifth Circuit..............................................     1

                       STATEMENTS OF THE NOMINEES

Bryant, Vanessa Lynne, Nominee to be District Judge for the 
  District of Connecticut........................................    74
    Questionnaire................................................    75
Wallace, Michael Brunson, Nominee to be Circuit Judge for the 
  Fifth Circuit..................................................     9
    Questionnaire................................................    10

                               WITNESSES

Anderson, Reuben V., Partner, Phelps Dunbar LLP, Jackson, 
  Mississippi....................................................   131
Askew, Kim J., Esq., Fifth Circuit Representative, Standing 
  Committee on the Federal Judiciary, American Bar Association, 
  Dallas, Texas, and Thomas Z. Hayward, former Chair, American 
  Bar Association, Standing Committee on the Federal Judiciary, 
  Chicago, Illinois..............................................   109
Blumenthal, Richard, Attorney General, State of Connecticut, 
  Hartford, Connecticut..........................................   129
Bresnahan, Pamela A., Esq., former D.C. Circuit Representative, 
  American Bar Association, Standing Committee on the Federal 
  Judiciary, Washington, D.C., and C. Timothy Hopkins, Esq., 
  former Ninth Circuit Representative American Bar Association, 
  Standing Committee on the Federal Judiciary Idaho Falls, Idaho.   119
Dodson, Doreen D., Esq., former Eighth Circuit Representative, 
  American Bar Association, Standing Committee on the Federal 
  Judiciary, St. Louis, Missouri.................................   126
Liebenberg, Roberta B., Esq., Chair, American Bar Association, 
  Standing Committee on the Federal Judiciary, Philadelphia, 
  Pennsylvania...................................................   108
Rhodes, Carroll, Esq., Attorney at Law, Hazlehurst, Mississippi..   134
Welch, W. Scott, III, Shareholder, Baker, Donelson, Bearman, 
  Caldwell & Berkowitz, Jackson, Mississippi.....................   132

                         QUESTIONS AND ANSWERS

Responses of Kim J. Askew to questions submitted by Senator Leahy   137
Responses of Richard Blumenthal to a question submitted by 
  Senator Cornyn.................................................   141
Responses of Roberta B. Liebenberg to questions submitted by 
  Senators Specter, Leahy, and Cornyn............................   143
Responses of Robert B. McDuff to questions submitted by Senator 
  Leahy..........................................................   165
Responses of Carroll Rhodes to questions submitted by Senator 
  Leahy..........................................................   167
Responses of Michael Brunson Wallace to questions submitted by 
  Senators Leahy and Kennedy.....................................   175

                       SUBMISSIONS FOR THE RECORD

Abbott, Guthrie T., Professor Emeritus of Law, University of 
  Mississippi, University, Mississippi, letter...................   195
Alston, Alex A., Jr., Attorney at Law, Brunini, Grantham, Crower 
  & Hewes, PLLC, Jackson, Mississippi, letter....................   197
Anderson, Reuben V., Partner, Phelps Dunbar LLP, Jackson, 
  Mississippi, statement and letter..............................   198
Blumenthal, Richard, Attorney General, State of Connecticut, 
  Hartford, Connecticut, statement...............................   204
Brown, Raymond L., Attorney at Law, Brown & Buchanan & Sessoms, 
  Pascagoula, Mississippi, letter................................   206
Bush, Fred M., Jr., Attorney at Law, Phelps DunBar LLP, Tupelo, 
  Mississippi, letter............................................   207
Bush, Jason R., Attorney at Law, Baker, Donelson, Bearman, 
  Caldwell & Berkowitz, P.C., Jackson, Mississippi, letter.......   209
Clark, Charles, Attorney at Law, Watkins & Eager, Jackson, 
  Mississippi, letter............................................   211
Clark, David W., Attorney at Law, Bradley Arant, Jackson, 
  Mississippi, letter............................................   214
Community Rights Counsel, Doug Kendall, Executive Director and 
  Earthjustice, Glenn P. Sugameli, Senior Judicial Counsel, joint 
  letter.........................................................   216
Connelly, John A., State's Attorney, Judicial District of 
  Waterbury, Division of Criminal Justice, Waterbury, 
  Connecticut, letter............................................   221
Cordiano, Dean M., Attorney at Law, Day, Berry & Howard LLP, 
  Hartford, Connecticut, letter..................................   223
Crudup, Ronnie, Bishop, Ronnie Crudup Ministries, Jackson, 
  Mississippi, letter............................................   225
Dawkins, Michael R., Shareholder, Baker, Donelson, Bearman, 
  Caldwell & Berkowitz, P.C., Jackson, Mississippi, letter.......   226
Evans, George Q., Attorney at Law, Wise Carter Child & Caraway, 
  Jackson, Mississippi, letter...................................   227
Former law clerks for the late Chief Justice William Rehnquist, 
  joint letter...................................................   229
Groark, Thomas, J., Jr., Attorney at Law, Day, Berry & Howard 
  LLP, Hartford, Connecticut, letter.............................   232
Henegan, John C., Attorney at Law, Butler, Snow, O'Mara, Stevens 
  & Cannada, PLLC, Jackson, Mississippi, letter..................   234
Hester, Kathryn H., Attorney at Law, Watkins Ludlam Winter & 
  Stennis, P.A., Jackson, Mississippi, letter....................   236
Kerrigan, Dennis F., Jr., past President, Hartford County Bar 
  Association, South Glastonbury, Connecticut, letter............   238
Kinney, Gail, Coordinator, Bar Leaders for the Preservation of 
  Legal Services for the Poor, Boston, Massachusetts, letter.....   240
Leadership Conference on Civil Rights, Wade Henderson, Executive 
  Director, and Nancy Zirkin, Deputy Director, Washington, D.C., 
  letter.........................................................   242
Liebenberg, Roberta B., Esq., Chair, American Bar Association, 
  Standing Committee on the Federal Judiciary, Philadelphia, 
  Pennsylvania, statement........................................   249
Lott, C. Lee, III, Associate, Baker, Donelson, Bearman Caldwell, 
  & Berkowitz, P.C., Jackson, Mississippi, letter................   279
Lott, Hon. Trent, a U.S. Senator from the State of Mississippi, 
  statement and attachments......................................   281
Magnolia Bar Association, Inc., Jaribu Hill, President, 
  Greenville, Mississippi, letter................................   295
Mattei, Ernest J., Counsellor at Law, Day, Berry & Howard LLP, 
  Hartford, Connecticut, letters.................................   299
McDuff, Robert B., Attorney at Law, Jackson, Mississippi, 
  statement......................................................   302
McGough, W. Thomas, Jr., Attorney at Law, Reed Smith LLP, 
  Pittsburgh, Pennsylvania, letter...............................   314
Morrison, Alan B., Senior Lecturer in Law, Stanford Law School, 
  Stanford, California, letter...................................   316
National Council of Jewish Women, Phyllis Snyder, Washington, 
  D.C., letter...................................................   318
Past and present members of the American Bar Association, joint 
  letter.........................................................   320
Phillips, Joy Lambert, General Counsel, Hancock Bank, Gulfport, 
  Mississippi, letter............................................   327
Republican National Lawyers Association, Washington, D.C., 
  article........................................................   330
Rhodes, Carroll, Esq., Attorney at Law, Hazlehurst, Mississippi, 
  statement......................................................   331
Robertson, James L., Attorney at Law, Wise Carter Child & 
  Caraway, Jackson, Mississippi, letter..........................   337
Sigal, Richard L., Attorney at Law, Hawkins, Delafield & Wood 
  LLP, New York, New York, letters...............................   342
Swayze, Charles J., Jr., Attorney at Law, Whittington, Brock & 
  Swayze, P.A., Greenwood, Mississippi, letter...................   348
Tober, Stephen L., and Doreen D. Dodson, Esq., American Bar 
  Association, Standing Committee on the Federal Judiciary, 
  Washington, D.C., statement....................................   350
Vickery, Alan B., Partner, Boies, Schiller & Flexner LLP, New 
  York, New York, letter.........................................   363
Wall Street Journal, New York, New York, article.................   364
Welch, W. Scott, III, Shareholder, Baker, Donelson, Bearman, 
  Caldwell & Berkowitz, Jackson, Mississippi, statement and 
  letter.........................................................   365
White, Gary J., Judge, State of Connecticut, Superior Court, 
  Rockville, Connecticut, letter.................................   376


 NOMINATIONS OF MICHAEL BRUNSON WALLACE, TO BE U.S. CIRCUIT JUDGE FOR 
 THE FIFTH CIRCUIT AND VANESSA LYNNE BRYANT, TO BE U.S. DISTRICT JUDGE 
                    FOR THE DISTRICT OF CONNECTICUT

                              ----------                              


                      TUESDAY, SEPTEMBER 26, 2006

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                     Washington, DC
    The Committee met, pursuant to notice, at 3:33 p.m., in 
room 226, Dirksen Senate Office Building, Hon. Arlen Specter, 
Chairman of the Committee, presiding.
    Present: Senators Sessions, Cornyn, Brownback, Leahy, and 
Kennedy.

 OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM 
                   THE STATE OF PENNSYLVANIA

    Chairman Specter. The Judiciary Committee will now proceed 
with the nomination of Michael B. Wallace to be U.S. Circuit 
Judge for the Fifth Circuit, and following that, the hearing 
for Vanessa L. Bryant to be U.S. District Judge for the 
District of Connecticut.
    As is our practice, we will hear, first, introductions from 
the Senators. With the nomination of Mr. Wallace listed first, 
we will turn at this time to the distinguished Senator from 
Mississippi, Senator Lott.

  PRESENTATION OF MICHAEL B. WALLACE, NOMINEE TO BE CIRCUIT, 
JUDGE FOR THE FIFTH CIRCUIT, BY HON. TRENT LOTT, A U.S. SENATOR 
                 FROM THE STATE OF MISSISSIPPI

    Senator Lott. I cannot get my microphone to work here, Mr. 
Chairman.
    Chairman Specter. We will take that up with the Rules 
Committee, Senator Lott.
    [Laughter.]
    Senator Lott. I think I know somebody there that maybe can 
help us with that.
    Chairman Specter. If we cannot get an adequate 
appropriation.
    Senator Lott. We may have to redecorate this whole room, as 
a matter of fact.
    Chairman Specter. I want to say at the outset that it was 
not planned that way.
    [Laughter.]
    Senator Lott. Well, thank you very much, Mr. Chairman. My 
senior colleague, Senator Cochran, is attending a briefing that 
I am sure the Chairman is familiar with. We thank you for going 
ahead with this hearing today for these very fine nominees that 
have been submitted by the President.
    I know Senator Cochran will have some personal remarks, but 
let me just take a few minutes to say that I am pleased to be 
here and to support the nomination of a gentleman and an 
outstanding lawyer that I have known, he and his family, for 
probably 30 years now or more.
    It is one of those cases where I knew his parents. He is 
from Biloxi, Mississippi, a great international city that has 
been through an awful lot in the last year. So, I have known 
his family, he and his wife and children. They are here. 
Brilliant daughters, all of them. One of his daughters actually 
worked in my office. So, I know this nominee quite well.
    I have always been tremendously impressed with his 
intellect, his character, and even his athletic ability. After 
he finished at Biloxi High School, he went to Harvard 
University.
    I questioned his wisdom on that, but he did go and actually 
played football. He graduated cum laude from Harvard 
University. He received his J.D. from the University of 
Virginia Law School in 1976, where he served on the Law Review 
and was in the Order of the Coif.
    After he graduated, he clerked for a Supreme Court Justice 
in Mississippi, Harry G. Walker, and then Associate Justice 
William H. Rehnquist of the U.S. Supreme Court.
    Following his Supreme Court clerkship, he returned to 
Mississippi and took his father's place in a small Biloxi legal 
partnership. During his 2 years with Sekul, Hornsby, Wallace & 
Teel--and one of the esteemed members of that law firm is 
actually here today, Claire Hornsby is a pioneer for women in 
the legal profession in our State and in this area. Mike 
participated in the general practice of law.
    From 1980 to 1983, he worked in Washington, DC for me, 
first as a research assistant with the Republican Research 
Committee in the House of Representatives, then following my 
election as Whip in the House, as counsel in the Whip's office.
    In 1983, he became an associate with the Mississippi firm 
of Jones, Mockbee & Bass in Jackson, and became a partner. The 
firm merged with one of the most renowned law firms in the 
State, Phelps Dunbar, where he remains a partner today.
    His practice focuses on complex commercial and 
constitutional litigation and includes a significant amount of 
appellate work.
    Though he was embarking on what would become a widely 
respected and successful private practice, Mike continued his 
commitment to public service through the end of the 
1980s. He served as Director of the Legal Services 
Corporation, a Presidential appointed and Senate confirmed 
position, from 1984 to 1990.
    Mike Wallace has never ducked tough issues or difficult 
issues. In more cases than not, he did a very persuasive job on 
the evidence, or with the knowledge that he had, was successful 
in the courtroom and in every walk of life that he has 
participated in.
    One of his law partners indicated that he has prevailed in 
about 80 percent of the appellate cases that he has handled.
    He has been criticized for unapologetically and vigorously 
asserting arguments for his clients, which is ridiculous, given 
that that is the obligation of every attorney.
    He has been criticized sometimes for things he did while 
working for me. I was the person in the leadership position. He 
worked under the direction of the person he was serving. So, I 
feel particularly aggrieved when I see those sort of unfair 
allegations.
    He has handled cases at every possible level in both State 
and Federal judicial systems, including, in 2002, he argued and 
won a case before the U.S. Supreme Court.
    I have been very concerned by some of the charges that have 
been leveled against him by nameless, faceless detractors who 
have questioned his fitness to be a judge. Those critics could 
not be more wrong.
    He is one of the most qualified people you could possibly 
find to serve on an appellate court, as is evidenced by his 
background, his education, his experience, his Washington 
experience, his working at the Supreme Court. I know him to be 
a considerate, personable, courteous, kind, and thoughtful 
family man.
    He is active in his church, Trinity Presbyterian, where he 
has not been content just to sit on the back pew. He has been 
aggressively involved, teaching a very popular Sunday school 
class, and recently he traveled with his church and a 
predominantly African-American Baptist church to Honduras to 
build houses for the poor.
    Bishop Ronny Crudup of the New Horizon Church in Jackson, 
in his letter to the Judiciary Committee, had this to say of 
Mike after he helped form a partnership between New Horizon and 
Trinity Presbyterian: ``It was the hard work of Michael Wallace 
and other progressive, open-minded, Christ honoring leaders at 
Trinity Presbyterian Church who, in a year's time turned an 
awful decision (not to enter the partnership) into a premier 
interracial church partnership in the State of Mississippi.''
    Throughout his life, Mike has shown a calling to public 
service. I have listed some of the things. He served in 
legislative roles and as Chairman of the Legal Services 
Corporation where, in my opinion, he took actions to deal with 
some of the problems that that entity had.
    After years of having to fight almost every year over its 
funding, after it was really changed and focused toward 
providing indigent legal services, has from that day to this 
annually gotten funding, including as far back as the Reagan 
administration, without fights because we are generally 
satisfied that they are doing what they should be doing.
    During the impeachment trial of President Clinton, I needed 
good legal counsel. Once again, Mike left his law firm to come 
and work with me as we tried to do the right thing in those 
uncharted waters.
    Many would disagree with how we did it, or whether we did 
it at all, but I think most would agree we did it responsibly, 
carefully, within the Constitution, in a timely fashion, and in 
a way that most people would think was a credit to the 
institution. Mike helped with that.
    So I am here, Mr. Chairman, to say that I have every 
confidence in this lawyer. I think he is one of the most 
brilliant legal minds I have ever known, and I think he would 
be a credit to the Fifth Circuit Court of Appeals. I put my 
full support behind his nomination.
    Thank you for having this hearing.
    [The prepared statement of Senator Lott appears as a 
submission for the record.]
    Chairman Specter. Thank you very much, Senator Lott.
    We turn now to the senior Senator from Mississippi, Senator 
Cochran.

  PRESENTATION OF MICHAEL B. WALLACE, NOMINEE TO BE CIRCUIT, 
   JUDGE FOR THE FIFTH CIRCUIT, BY HON. THAD COCHRAN, A U.S. 
             SENATOR FROM THE STATE OF MISSISSIPPI

    Senator Cochran. Mr. Chairman, I am pleased to join my 
friend and colleague in the Senate to support the nomination of 
Mike Wallace to serve as a member of the Fifth Circuit Court of 
Appeals. Mike is exceptionally well qualified to serve as a 
member of this court. He is a highly skilled lawyer with a wide 
range of experience that will enable him to serve with 
distinction.
    Mike is joined today, as you have probably been advised, by 
members of his fine family and fellow lawyers from our State. 
His wife, Barbara, is a lawyer in Jackson, Mississippi. His 
daughter, Molly, is pursuing a Master's degree in Speech 
Pathology at the University of Memphis. His daughter Ellie is a 
junior at the University of Southern California. His daughter 
Grace is a junior at St. Andrew's Episcopal School in Jackson, 
Mississippi. His sister, Jane May Daughtery of Biloxi is here 
as well.
    Mike's long-time former law partner and my good friend, 
Claire Hornsby of Biloxi is here. She is a former president of 
the Harrison County Bar Association and was the first woman to 
practice law in the Mississippi Gulf Coast. She is here 
supporting Mike's confirmation.
    Other distinguished Mississippians in the legal profession 
who know Mike Wallace well are here: Reuben Anderson, former 
State Supreme Court Justice in Mississippi, who is now Mike's 
partner at the law firm of Phelps Dunbar.
    And my former classmate from the University of Mississippi, 
Scott Welch, who practices law with Baker Donaldson in Jackson 
and currently serves on the American Bar Association's Board of 
Governors, is here to support Mike Wallace.
    Mike graduated cum laude from Harvard University in 1973. 
He attended the University of Virginia School of Law, where he 
served on the Law Review, a top student at that university. He 
was a member of the Order of the Coif.
    After graduating from law school, Mike clerked for Justice 
Harry Walker on the Supreme Court of Mississippi, and then for 
Associate Justice William H. Rehnquist in the U.S. Supreme 
Court.
    He then joined the law firm of Sekul, Hornsby, Wallace in 
Biloxi, where he practiced for 2 years and then came to 
Washington to serve as an Assistant Research Analyst for the 
U.S. House Republican Research Committee, when my friend, 
Senator Lott, was Chairman of the Research Committee.
    Then he served as counsel, as Senator Lott pointed out, 
during the impeachment proceedings. But after he was counsel to 
the Research Committee, he served in the Whip's office as 
counsel in the House.
    Well-versed in a wide range of legal matters, a top student 
everywhere he has ever been, widely respected, and justly so. 
He has been involved with complex litigation.
    In our State, if you had a tough lawsuit you went to see 
Mike Wallace. If you had something complicated to figure out, 
you consulted with Mike Wallace. He has been involved in 
litigation in State and Federal courts throughout the United 
States.
    In 1999, Mike was called on for the toughest job ever, to 
serve as impeachment counsel to the Senate of the United 
States. My friend and colleague was the Majority Leader of the 
Senate at that time and he tried to find the best, the 
smartest, the most capable person to help us do that job and do 
it right, and consistent with the Constitution and the laws of 
the United States, and in a fair manner that would reflect 
credit on the country and the U.S. Senate.
    He achieved that result. He served the Senate during a very 
difficult challenge to this institution's fitness to serve as a 
court of impeachment of the President of the United States. 
Think about that.
    I hope the Committee will carefully review the nomination. 
The President has chosen well, and I recommend the Committee 
report favorably his confirmation to the Senate.
    Chairman Specter. Thank you very much, Senator Cochran.
    As is the practice after the introductions are made, 
Senators do not customarily remain. So if you choose to exit, 
people will understand the practice of the committee.
    We now turn to Senator Christopher Dodd, for the 
introduction of Vanessa L. Bryant to be U.S. District Judge for 
the District of Connecticut.
    Senator Dodd. Mr. Chairman, this is a Rules Committee 
matter again with the microphone.
    Chairman Specter. Well, let the record show that both the 
Chairman and Ranking Member of the Rules Committee have had 
first-hand evidence of the need for further additional funding 
for the Judiciary Committee so that we can secure adequate 
equipment.
    [Laughter.]
    Senator Dodd. A pretty shoddy way of doing that.
    Chairman Specter. And may the record further show that it 
was not a preconceived plot.
    [Laughter.]

 PRESENTATION OF VANESSA LYNNE BRYANT, NOMINEE TO BE DISTRICT 
  JUDGE FOR THE DISTRICT OF CONNECTICUT, BY HON. CHRISTOPHER 
       DODD, A U.S. SENATOR FROM THE STATE OF CONNECTICUT

    Senator Dodd. Well, thank you very much, Mr. Chairman. I am 
pleased to be here today with my colleague, Senator Lieberman, 
in introducing Judge Vanessa Bryant of Avon, Connecticut to sit 
on the U.S. District Court for the District of Connecticut. We 
thank the Committee for taking the time to hear her and to 
allow her to be before the Committee.
    I want to congratulate Judge Bryant on her nomination to 
the U.S. District Court. I would also like to acknowledge the 
members of Judge Bryant's family who are here today. She is 
joined by her husband, Tracy Rich, who is the Executive Vice 
Chairman and General Counsel of the Phoenix Company in 
Hartford, Connecticut; her son Bryant, a student at Bowdoin 
College; her daughter Dana, who is a student at Oberlin 
College; and her mother Muriel, who is here as well. So, it is 
a pleasure for us to welcome them to this Committee room.
    I would also note, Mr. Chairman, that the Attorney General 
of Connecticut, Richard Blumenthal, is here to speak as well on 
behalf of our nominee, along with the State president of the 
NAACP, Scot Esdaile, among other people from Connecticut who 
have come down on behalf of this nominee.
    President Bush nominated Judge Bryant to fill the vacancy 
created by U.S. District Court Judge Dominic Squatrido, on the 
recommendation of Connecticut Governor Jodi Rell. Governor Rell 
had a number of potential candidates, Mr. Chairman, to fill 
this seat, but she was most favorably impressed with Judge 
Bryant, as we are, and hence our presence here this afternoon.
    Judge Bryant is a product of Stanford and Norwalk public 
schools. She graduated from Howard University with Honors, and 
went on to receive her law degree at the University of 
Connecticut.
    Upon graduation from law school, Judge Bryant was hired as 
an attorney for the Hartford firm of Day, Berry & Howard, one 
of our most distinguished law firms in the State of 
Connecticut, and subsequently worked for the Aetna Life & 
Casualty Company and Shawmut Bank.
    From 1990 to 1992, Judge Bryant served as vice president 
and general counsel of the Connecticut Housing and Finance 
Authority, which finances the construction of affordable 
housing and helps low-income families purchase their own homes.
    She later served as managing partner at the Hartford-based 
law firm of Hawkins, Delafield & Wood. In 1998, former Governor 
Roland nominated Judge Bryant to the Connecticut Superior 
Court, to which she was easily confirmed, I may point out.
    In 2003, she was elevated to become the administrative 
judge in the Litchfield Judicial District. Judge Bryant rose 
the next year to her current position as the presiding judge 
for the Hartford Judicial District, Civil Division, overseeing 
all civil cases in the Hartford court and assigning the 
caseloads for judges under her jurisdiction.
    Outside of the courtroom, Judge Bryant has devoted, Mr. 
Chairman, a great deal of her time to important volunteer work 
in Connecticut through the Oliver Ellsworth Inn of Court. She 
has served as a mentor and role model for young attorneys in 
our State. It is also notable that, if confirmed, Judge Bryant 
will be the first African-American woman to serve on the 
Connecticut Federal bench.
    As someone who supports this nomination of Vanessa Bryant 
to the U.S. District Court for the District of Connecticut, I 
want to thank you, Mr. Chairman, and the Committee for 
scheduling this confirmation hearing today, and to know that we 
support this nomination very strongly and hope the Committee 
will look favorably upon this nomination.
    Chairman Specter. Thank you very much, Senator Dodd.
    We now turn to Senator Lieberman.

 PRESENTATION OF VANESSA LYNNE BRYANT, NOMINEE TO BE DISTRICT 
   JUDGE FOR THE DISTRICT OF CONNECTICUT, BY HON. JOSEPH I. 
    LIEBERMAN, A U.S. SENATOR FROM THE STATE OF CONNECTICUT

    Senator Lieberman. Thanks very much, Mr. Chairman, Senator 
Cornyn. I am glad to join with my senior colleague, Senator 
Dodd, in introducing Judge Vanessa L. Bryant to your Committee 
at this, her confirmation hearing on her nomination to become a 
U.S. District judge, but to also say that we are not just here 
to introduce her, but to endorse her and to urge the Committee 
to favorably report on her nomination to the bench.
    As Senator Dodd said, Judge Bryant's name was originally 
raised by Governor Rell, our colleague, as Governor of our 
State. I had not known her before, but I have gotten to know 
her. I have reviewed her record.
    I have heard from people who have worked for her, with her, 
appeared against her in court, appeared before her in her time 
as judge, and the reports are extremely favorable, coming from 
people whose judgment I respect and whose standards are high.
    Senator Dodd spoke to the facts of Judge Bryant's 
biography, her curriculum vitae. I would just say that at each 
stage of this career, considerable experience in the private 
sector, some in the public sector before she went on the bench, 
and then from the time she has gone on the bench she has, in my 
opinion, performed very, very well.
    Judge Joseph Pellegrino, who is the Chief Court 
Administrator in the State of Connecticut, whose duties include 
assigning judges, considering their service, recommending 
judges for promotion, has in one public statement, a statement 
to us on Judge Bryant, called her ``a super-star''. That is a 
very, very high compliment from a demanding member of the 
Connecticut bench who is the Chief Court Administrator.
    The facts speak to this. As an administrator, Judge Bryant 
has a proven record in both the Hartford and Litchfield courts, 
where she has worked on speeding up clogged caseloads.
    When Judge Bryant took over the Hartford Judicial District 
Civil Division in September of 2005, there were just over 2,100 
civil cases pending. By December of 2005, four or 5 months 
later, that number was reduced by nearly 25 percent, to 1,594.
    I will say also that as a trial judge, Judge Bryant had a 
reversal rate of 6.4 percent, which is to say, in only 6.4 
percent of the cases that she rendered decision in which were 
appealed, only 6.4 percent of the time was she reversed. That 
is an enviable record.
    Even with her heavy workload, she has found time to 
volunteer both her professional skills to young lawyers, as 
Senator Dodd indicated, and also at her church, the Asylum Hill 
Congregational Church in Hartford.
    She is here with her family. It is a wonderful, proud, 
involved family of citizens. Her mother, proud mother, 
justifiably proud, her husband, two children.
    I said I had not met Judge Bryant before she was nominated. 
I hope this will not bias the Chairman or the members of the 
committee. Her son did work in my purposive, but ill-fated, 
Presidential campaign in 2004.
    [Laughter.]
    So, this speaks to his idealism, and I will say, generally, 
the good judgment of the members of this family.
    I know that there is some controversy around this 
nomination from the Bar Associations. I would just say, 
personally, that I have spent some time on the record here and 
I have listened to people who have called, and I have read the 
letters of people who have written. They are strong and they 
are positive. So, I come before you to strongly endorse this 
nomination.
    Senator Dodd said Judge Bryant should be confirmed on the 
merits, but in this country that celebrates the breaking of 
barriers, and all of us have had the opportunity at one time or 
another to do so, it should not be passed over that, if 
confirmed--and I would say when confirmed--Judge Bryant will be 
the first African American woman to serve on the Federal bench 
in New England.
    We are at the end of the session. We are going to recess at 
the end of this week. Mr. Chairman and members of the 
Committee, I hope you will find it possible, if not this week 
during the lame duck session, to report this nomination to the 
full Senate. The Federal district bench in Connecticut is a 
busy one. I know probably everybody says that to you.
    Attorney General Blumenthal, who himself and through his 
Assistant AGs has appeared before Judge Bryant many times, can 
testify more personally than I can, because I have not been 
there in a while. But we need to fill this vacancy on the 
bench, and I hope we will find it possible together to bring 
Judge Bryant to confirmation before the end of this calendar 
year.
    Mr. Chairman, I thank you very much for your courtesy and I 
wish the Committee well.
    Chairman Specter. Thank you very much, Senator Lieberman.
    As I said earlier, it is not the custom of introducing 
Senators to stay beyond the point of their introduction, so 
people will understand if you go back to your other duties.
    Senator Lieberman. Thank you, Mr. Chairman.
    Chairman Specter. Michael B. Wallace, please step forward, 
and Vanessa L. Bryant. We will swear you in together. If you 
will please raise your right hands.
    [Whereupon, the nominees were duly sworn.]
    Chairman Specter. You may be seated, Mr. Wallace.
    Judge Bryant, if you will sit back, we will take Mr. 
Wallace first, as he is listed first on the agenda, and his 
nomination is for the Court of Appeals.
    Mr. Wallace, welcome to the Judiciary Committee.
    Mr. Wallace. Thank you, Senator.
    Chairman Specter. It is our custom, if you would introduce 
your family, we would appreciate your doing that at this time.
    Mr. Wallace. I would be happy to do that. I was pleased 
that Senator Cochran was able to do that. My wife, Barbara 
Wallace is here with me. Our oldest daughter Kyle, who is a 
second-year student at the University of Virginia Law School is 
here. And our daughter Molly, and our daughter Ellie, and our 
daughter Gracie, I think Senator Cochran told you what those 
young ladies were doing. We are all pleased and happy to be 
here with you today.
    Chairman Specter. Thank you, Mr. Wallace.
    As is our custom, we will proceed now with whatever 
statement you care to make to the committee.

   STATEMENT OF MICHAEL BRUNSON WALLACE, NOMINEE TO BE U.S. 
              CIRCUIT JUDGE FOR THE FIFTH CIRCUIT

    Mr. Wallace. Thank you, Mr. Chairman. I do not have an 
opening statement. I do want to thank the President for his 
confidence in me. I do want to thank our two Senators, Senator 
Cochran and Senator Lott, for their kind words today, for their 
many years of friendship to me.
    As Senator Lott mentioned, I am a Biloxian, and as a 
Biloxian I certainly want to thank the American people you 
represent for your generosity to us since the storm. It means 
very much.
    And while it may seem a little odd, I want to thank my 
friends, Rob McDuff and Carroll Rhodes, for coming all the way 
from Mississippi to testify against me today. I also thank, 
certainly, my partner, Reuben Anderson and Scottie Welch, that 
the Committee has invited.
    I think the best way this Committee can find out the truth 
is to hear from well-informed people in possession of the 
actual facts, to hear from both sides. It works well in the 
courtroom and I know it will work well today.
    You have had my questionnaire for some time, and I do not 
think there is any more I need to say, Mr. Chairman. I am happy 
to answer your questions.
    [The biographical information of Mr. Wallace follows.]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Chairman Specter. Mr. Wallace, the American Bar Association 
has raised some very serious allegations and I want to give you 
every opportunity to respond.
    On page 13 of the ABA's testimony, they say that you ``have 
not shown a commitment to equal justice under law.'' Further, 
the ABA says that you do not ``understand or care about issues 
central to the lives of the poor, minorities, the marginalized, 
the have-nots, and those who did not share your view of the 
world.''
    Of particular concern, according to the American Bar 
Association, was your positions taken relating to the Voting 
Rights Act, and more specifically the case of Jordan v. Winter.
    The American Bar Association reports that you advanced 
legal positions that were ``not well founded'' and that you did 
so in a manner that suggested you were ``advancing your own 
personal views on the interpretation of the Voting Rights Act 
without regard to the law or the ultimate merits of the 
litigation and the impact on African-American citizens of 
Mississippi.''
    How would you respond to that American Bar Association 
testimony?
    Mr. Wallace. Thank you, Mr. Chairman. There is a lot in 
there, the general conclusions reached in that report about my 
lack of commitment to equal justice under the law and my lack 
of sympathy for the problems of the poor.
    I was raised in a small law office in Biloxi. I know about 
the problems of equal justice and I know about the poor. It is 
a small town. I had the opportunity, with my father and with 
his partners, including Ms. Hornsby, who is here today, to see 
people who needed help and to have the opportunity to give it 
to them.
    If I were not interested in equal justice and in the rights 
of the poor, I never would have gone home to Mississippi. I 
could have easily stayed up here in Washington and represented 
rich people for a lot more than I get for representing the same 
people in Mississippi.
    But I went home because I want to make Mississippi a better 
place to live. I think I have been able to help do that. It is 
important to me to see to it that it is a better place for my 
children.
    The litigation under the Voting Rights Act was litigation 
that I undertook on behalf of my client, the Mississippi 
Republican Party. I have been active in that party my whole 
life.
    My father was one of those people who came home from World 
War II, they had seen how the rest of the world worked, they 
saw the things that the rest of the world had that we did not 
have in Mississippi, and they set their minds about to bringing 
us into the modern times. That is why he was Eisenhower 
Chairman in Harrison County in 1952.
    So when I came home, it was natural that when the party was 
looking for representation and consultation with a Mississippi 
delegation, I was hired to defend the Jordan v. Winter case.
    In that case, before we got involved, the Federal court had 
already created the first black majority district in 
Mississippi and had created another district that had a 
substantial minority population. All we did on behalf of the 
Mississippi Republican Party was to seek to preserve the plan 
that the court had already put into place.
    The arguments we made were fair. The arguments we made were 
discussed with the Senate when I was first confirmed to Legal 
Services when I had my first hearings back in 1983, because we 
had these same voting rights discussions then.
    The Senate knew what positions I was going to take on 
behalf of my client. It imposed no impediment to my 
confirmation then. I think we litigated fairly, fully, and 
properly on behalf of the party, and any criticism based on my 
representing my client to the best of my ability is unfounded 
in this case.
    Chairman Specter. Mr. Wallace, on pages 14 and 15 of the 
ABA's testimony they report concerns about another Voting 
Rights case, Branch v. Smith. The ABA states, ``Mr. Wallace 
argued for the creation of at-large districts for the election 
of Mississippi Congressional representatives, a position the 
lawyer said would have eliminated the only majority African-
American single-member district in Mississippi.
    Lawyers state that the U.S. Supreme Court rejected the 
position advanced by Mr. Wallace in Branch v. Smith that 
allowed single-member districts in Mississippi.'' Is the ABA's 
representation of your role in this litigation accurate?
    Mr. Wallace. I do not think it is entirely accurate, Mr. 
Chairman. The Republican Party had been sued in that litigation 
and we were obliged to take a position. The position we took, 
is that an Act of Congress ought to be enforced.
    It may surprise you to know that there is an Act of 
Congress on the books that says whenever a State loses 
representation after a Census, if the legislature cannot agree 
on a redistricting, everyone must be elected at-large. That is 
what the statute says.
    Having served here in the Congress, as Senator Lott 
mentioned, my daughter is the fourth generation of Wallaces to 
serve on a staff position here. I respect statutes passed by 
Congress. We put that statute before the court. The trial court 
decided not to enforce it.
    But we were not seeking to eliminate an African-American 
representation in Congress. We told the Supreme Court, and I 
told Justice Ginsberg when she asked me in an oral argument, 
will this not dilute minority votes, and I said there are 
plenty of mechanisms that our courts have used in Mississippi 
to make sure that minorities can be elected, even from white 
majority multi-member districts.
    I told her there was no doubt that such an election under 
that statute would produce an African-American Congressman. It 
was never our intention to take away that representation, and 
it would not have been the effect had the court decided the 
statute applied in that circumstance.
    Chairman Specter. On page 16 of the ABA's testimony there 
is a list of unattributed quotes that are provided with no 
context. There is certain questioning of the process of 
unattributed quotes, but the American Bar Association has put 
this into the public record and, as a matter of fairness, you 
ought to have an opportunity to make whatever response you 
choose.
    These unattributed quotes are as follows: ``He has an 
instinct contempt for the socially weak, including the poor and 
minorities''; ``the poor may be in trouble, he is just not open 
to those issues''; ``he does not like poor people or anyone not 
just like him''; ``he will be like 1965, not 2006.''
    You are invited to make a response.
    Mr. Wallace. Mr. Chairman, it is very difficult to respond 
to partial quotations from unknown people. But I am happy to 
say that we have four distinguished lawyers from Mississippi 
here today who know me, who know what kind of man I am.
    I was pleased to see that Mr. McDuff, in his testimony, 
acknowledged that I have always been civil and cooperative to 
him and people with whom he is working, and I do not have any 
doubt Mr. Rhodes will tell you the same thing. I think when you 
finish talking to those four gentlemen today, you will have a 
true picture of my character and my behavior.
    Chairman Specter. On page 17 of the ABA's testimony you 
were described as ``narrow-minded in your views, lacking in 
tolerance, entrenched in your views, insensitive, intolerant, 
high-handed, not willing to yield to logic or facts, rigid, 
inflexible, overly opinionated, one-dimensioned, locking into a 
point of view and not open to the position of others.''
    You are invited to respond.
    Mr. Wallace. I find those charges difficult to understand, 
Mr. Chairman. Like most litigators, most of the cases I take 
get settled. Litigators vigorously represent their clients' 
interests. They fight hard for the positions their clients 
take. But at the end of the day, once the facts in the law have 
been thoroughly explored, most cases settle, and most of mine 
do.
    If I were as narrow-minded and as intransigent as those 
quotes would make out, my cases would not settle, and I 
probably would not get hired. Not too many clients can afford 
to try case after case just for the fun of it.
    Chairman Specter. Mr. Wallace, on page 19 of the ABA 
testimony your ability to be free from bias is called into 
question. Many express concerns about your ability to follow 
precedent or to put your own personal views aside when judging 
cases.
    The ABA testimony further says that you ``had filed 
pleadings and taken positions that certainly did little or 
nothing to advance the merits of the case,'' and suggesting 
that you were ``deviating from existing precedent'' in some of 
those positions.
    Would you care to respond to that?
    Mr. Wallace. Two things, Mr. Chairman. Yes, I would be 
happy to. Freedom from bias is a difficult thing for me to 
understand. I grew up in a difficult time in Mississippi, as 
many of these other witnesses did.
    I remember quite clearly my mother explaining to me in no 
uncertain terms how people are expected to believe, and I think 
I have maintained those standards throughout my life. If I had 
any sort of bias, I would not be a partner in the most 
integrated law firm in the State. I would not send my children 
to the most integrated school in the State.
    I would not, as Reverend Crudup points out in his letter, 
have represented my church in helping to build a biracial 
Christian coalition in Jackson, Mississippi to improve 
communications and relations in the community. None of that 
would have happened if I were a person of bias.
    As far as precedent is concerned, I worked for two 
excellent appellate judges, Justice Walker and Justice 
Rehnquist. They taught me the meaning of precedent. They taught 
me how to read it and they taught me to respect it. As a 
lawyer, that is important. When my clients come to me, they 
want to know what the law is.
    They do not want to hear a lot of theory, they want to know 
what they can do and what they cannot do. If you do not respect 
precedent, you cannot give them a good answer to that question. 
I think I have been able to give my clients good answers.
    Chairman Specter. Mr. Wallace, it has been reported that 
you were interviewed on three separate occasions by ABA 
investigators. The ABA Standing Committee on the Federal 
Judiciary's Handbook requires that a nominee be given a ``full 
opportunity to rebut the adverse information and provide any 
additional information bearing on it.'' Do you believe that you 
were given an opportunity to rebut the information, as required 
by the ABA Handbook?
    Mr. Wallace. No, I do not believe that, Senator. I 
certainly do not think that I needed to know the names of the 
individuals who gave the quotes that you said, but the ABA 
testimony contains specific charges about specific litigation 
that was not discussed with me in the initial interview.
    In the third interview we had last week, I was given enough 
information to deal with one charge. They revealed to me that a 
former Bar president in New Hampshire had said that I behaved 
improperly in presiding over a Legal Services Committee hearing 
held in New Hampshire.
    With that information, I was able to get the transcript 
from the committee, from the Legal Services Corporation, and to 
forward it to the committee. It is 243 pages of the most boring 
detail work in amending the Code of Federal Regulations that 
anyone can imagine. There was not any support.
    We worked all day and we came to a reasonably amicable 
result. But I do not think anybody who could read those 243 
pages could possibly find it to support the charges that Mr. 
Ross made against me.
    Chairman Specter. As has been widely publicized, you 
received a ``Not Qualified'' rating from the ABA. Can you tell 
the Committee your opinion of the rating and the process, as 
you see it from your point of view, that the ABA used to arrive 
at that rating? Essentially, do you think it was a fair 
evaluation and an accurate rating?
    Mr. Wallace. Senator, I'm not a member of the ABA. I do not 
really have standing to tell them how to do their business. I 
have told you that I do not believe that they lived up to the 
standards they have expressed, that you will be given an 
opportunity to rebut the charges against you. I think I should 
have had that opportunity. I do not think that I had it.
    But as to whether or not I am qualified, I would just ask 
once again that you consider the testimony of the 
Mississippians who know me, the two Senators who you have just 
heard from, the four lawyers on both sides of the issue that 
you are going to hear from in a few minutes.
    I think, if I were as unqualified as the association makes 
out to be, it is unlikely that I would have had the opportunity 
to serve three Presidents of the United States that I have. I 
am proud of their confidence in me and I hope that, at the end 
of the day, this Committee will share it.
    Chairman Specter. Did the ABA, in your opinion, consider 
all the relevant information? Specifically, do you know whether 
the Standing Committee contacted people you asked them to 
contact?
    Mr. Wallace. I know that at the outset they did not. My 
friend, Judge McConnell from the Tenth Circuit, who is my 
daughter Molly's godfather, called up before the hearing and 
said, why has the ABA not called me? I said, I do not know. The 
first investigator came to see me. I said, please be sure to 
call Judge McConnell. That did not happen.
    When the third set of investigators came to see me, I said, 
please call Judge McConnell. At that point I know that it did 
happen, but there were other people that I mentioned that I 
would hope they would have called. Some of them I know were not 
calling. Some of them, I have not heard from.
    Chairman Specter. Can you be specific as to who they were?
    Mr. Wallace. Certainly. Ms. Askew was a member of the Board 
of Visitors at Georgetown, one of my classmates, who is the 
General Counsel at Georgetown. I asked her to go ahead and call 
their General Counsel. I know that did not happen.
    Now, I asked a couple other people. I do know they called 
Judge McConnell this last week. I do not know whether they 
called any of the other folks that I mentioned. But at the 
outset, no, they just did not call the folks I suggested to 
them.
    Chairman Specter. Anybody else, specifically?
    Mr. Wallace. I specifically asked them to call Bob Bauer. 
Bob was my counterpart on the Democratic side of the aisle 
during the impeachment proceedings. He represented the 
Democratic Leader, Senator Daschle.
    The argument had been made that I could not work with 
people, and I suggested that that was a pretty tough crucible 
in which to work. I think that he and I worked together pretty 
well. I do not know whether or not that happened. I have not 
talked to Bob this week.
    I also suggested they might call the dean at the Maryland 
Law School, who is a friend of our family. I do not know 
whether that happened. I have not had a chance to find out. 
This has only been since last Monday that they last came to see 
me. I think that is a full list, Mr. Chairman.
    Chairman Specter. Mr. Wallace, as you see it, do you 
believe that there were material misstatements of fact in the 
ABA testimony regarding your background?
    Mr. Wallace. I certainly think their characterizations of 
some of the cases that I have been involved in are 
substantially inaccurate. As to the opinions of people, I do 
not think there can be such a thing as an accurate opinion. I 
mean, they may very well be reporting the opinions they heard.
    I do not think those opinions are well founded. The 
difficulty is, I never was told the supposed facts behind those 
opinions, so there was no opportunity to explore them and to 
rebut them.
    Chairman Specter. Mr. Wallace, it has been reported that 
while working with then-Representative Lott, you helped write a 
letter urging the Reagan administration to defend Bob Jones 
University's tax-exempt status, despite its racially 
discriminatory policies. That has led some to argue that you 
took a discriminatory position.
    What response, if any, would you care to make on that 
issue?
    Mr. Wallace. Congressman Lott, as he then was, was 
particularly interested in that litigation because church 
schools in Mississippi were being threatened with the loss of 
their exemption, not because they were discriminatory, but 
because they did not meet extremely onerous burdens of proving 
that they were not.
    The Congressman expressed that feeling to the President. He 
filed a brief as a pro se with the Supreme Court of the United 
States, which is there for anybody to read.
    It is not a defense of discrimination, it is merely a 
description of principles of statutory construction which said 
that religious and educational institutions are entitled to an 
exemption.
    It denied that the Internal Revenue Service was entitled to 
make public policy. But the concern that Congressman Lott had, 
as expressed in his brief, was that executive agencies should 
follow the law.
    The fact that a discriminatory institution might benefit 
from that is no more an endorsement of discrimination than a 
lawyer is endorsing murder when he defends an accused client, 
as I have had the opportunity to assist my partners in doing in 
pro bono cases in Mississippi.
    Chairman Specter. Mr. Wallace, in 1983 testimony you are 
reported to have expressed general support for the Voting 
Rights Act, saying that it has ``had a tremendous effect in my 
home State of Mississippi with regard to its primary goal of 
assuring people'' the right to vote.
    But you took exception with Section 2 of the Act, to the 
extent that it measured discrimination in terms of disparate 
results rather than showing a discriminatory intent. Some have 
contended that that was a cramped or unduly restrictive--
    Mr. Wallace.--said to be an unfair interpretation, it is 
certainly not something I hid from the Committee. I remember 
having that discussion at my confirmation hearings with Senator 
Hatch, who, as you will remember, worked very hard on the 
Voting Rights Act amendments in 1982.
    I made quite plain to the Committee the positions that I 
would be taking for my clients in the Mississippi litigation, 
and neither Senator Hatch nor the Senate as a whole considered 
those positions out of bounds.
    Ultimately, those positions were rejected by several 
courts. The first court to reject them was in the Louisiana 
litigation that year, and the lawyer that made the same 
arguments I did, Martin Feldman, was promptly confirmed to the 
District Court bench in Louisiana, where he still sits.
    So the Senate most familiar with the 1982 Act, while 
perhaps disagreeing with the positions we took on behalf of our 
clients, certainly did not consider those positions 
disqualifying.
    Chairman Specter. Mr. Wallace, it is reported that you 
assisted then-Congressman Lott in taking a position, in a 
letter dated October 21, 1981, to prevent the Department of 
Justice from sending Federal inspectors into the Mississippi 
County jails.
    Would you please give the Committee what the circumstances 
were of that letter and what position was taken, and what your 
participation, if any, was?
    Mr. Wallace. I would be happy to, Mr. Chairman. The letter 
did not object to the sending of inspectors into Mississippi 
County jails, as I recall. I do not have it in front of me, but 
I think it is in the record from my confirmation hearings 20 
years ago. In fact, according to the newspapers, inspectors 
went into the county jails within a few days after that letter.
    The inspectors apparently did not see anything particularly 
wrong at the time. Then a couple of days later, there was a 
fire in the Biloxi jail in which a number of prisoners died. It 
was a terrible and tragic event, but it was completely 
unrelated to Congressman Lott's letter. He did not ask that 
inspectors stay out of the jails and, in fact, the inspectors 
went into the jails.
    His concern was that Deputy Attorney Schmultz had made 
commitments to him about the ongoing prison litigation in 
Mississippi, and those commitments had not been kept by the 
lawyers in the field.
    A Member of Congress, as you can imagine, is quite 
concerned that commitments made by the executive branch should 
be kept. But there was no request in that letter that 
inspectors should stay out of Mississippi jails.
    Chairman Specter. Mr. Wallace, in your 1983 hearing for 
Community Legal Service Director, the issue was raised that you 
could not answer in full, expressing confidentiality concerns. 
Is there any confidentiality concern which is limiting your 
testimony today in any way on that subject?
    Mr. Wallace. No, Mr. Chairman. As you heard Senator Lott 
here today, he does not believe that the work done for his 
staff is a proper subject of inquiry, but he has not claimed 
any privilege with regard to that. I am free to be open, and I 
have been open in accordance with my oath to this Committee.
    Chairman Specter. With respect to your tenure as Director 
of Legal Services Corporation, there are statements that you 
sought to impose unreasonable limits on the type of matters 
that the Legal Services Corporation could support and sometimes 
voiced support of its outright abolition.
    First of all, did you ever argue that it should be 
abolished?
    Mr. Wallace. To the contrary, Mr. Chairman. I told 
President Reagan's staff, when my nomination was under 
consideration, that I supported the corporation. I told Senator 
Hatch's committee, under oath, that I supported the 
corporation. I did then and I do now. I have never acted in any 
way inconsistent with that oath. I did attempt to reform the 
corporation.
    As Senator Lott has said here, I think the reforms that we 
put into place, taking the corporation out of an active role in 
politics, putting it into the kind of ordinary services to the 
poor, have helped to preserve it.
    In the paper in Jackson yesterday it said the local Legal 
Services folks were trying to keep people from being evicted 
from a HUD-funded project. That is exactly the sort of thing 
Legal Services ought to be doing, and Congress expects it to 
do.
    Indeed, by the end of the program, President Reagan had 
abandoned his opposition to legal services. He supported its 
continuation. He put it back in the budget. I think that is 
because of the successful work we did in reforming the 
corporation, and I think in large portion that is why the 
corporation is still here today.
    Chairman Specter. Did you ever contend that the Community 
Legal Services' operation was unconstitutional?
    Mr. Wallace. I did not contend that the corporation was 
unconstitutional. I did suggest that I thought the appointment 
mechanism for the board had real constitutional problems, and 
here is why.
    When Congress set it up, it did not set up the corporation 
as a traditional, independent agency, the sort that has 
traditionally been upheld by the U.S. Supreme Court.
    It is not unusual for Congress to set up executive branch 
agencies where the President cannot fire the particular 
officers, but by declaring that we were not Federal officers, 
Congress immunized us to impeachment.
    The directors of the Legal Services Corporation, so far as 
I can tell, can neither be fired by the President, nor 
impeached and removed by the Congress. It seems to me very 
unwise to attribute $300 million of taxpayers' money every year 
to folks where there is no emergency mechanism for removing 
them when the time arises. That was my objection, not to the 
corporation, but to its particular mode of government.
    Chairman Specter. Mr. Wallace, a question was raised about 
certain lobbying activities said to have been undertaken by 
you. Senator Redman, the Ranking Republican on the 
Appropriations Subcommittee on Oversight for the Legal Services 
Corporation raised an issue as to the propriety of people on 
the board who lobby.
    What response, if any, would you care to make to that?
    Mr. Wallace. If it is the instance that has been reported 
in some of the writings about me over the last month, there was 
a lobbying effort at one point to change our appropriation. We 
had consistently been appropriated about $300 million a year.
    In our last year, as I told the Committee, President Reagan 
said, all right, I do not want to abolish the corporation any 
more, I want to keep it, but I want to fund it at $250 million.
    I thought that when the President of the United States 
would come five-sixths of the way to meet us, that I thought it 
was incumbent upon us to go the rest of the way to meet him. We 
agreed. Our board agreed to endorse the President's budget.
    And, yes, we sent people up here to try to promote that 
budget. Every agency in the government has lobbyists to support 
its budget. They usually call them the Office of Legislative 
Affairs, or something like that. But what they are, is 
lobbyists. We had them and we used them.
    Chairman Specter. Mr. Wallace, I have taken a good deal 
more time than is customary, except for Supreme Court nominees, 
almost up to the 30-minute mark, but have sought to put before 
the Committee all of the issues known to the staff and to me to 
give you an opportunity to respond.
    Just one more comment. I have expressed publicly the 
concerns about the first report by the American Bar Association 
because key officials had very substantial public controversy 
with you in the past, and I was concerned about the 
impartiality.
    Accordingly, I wrote to the ABA on two occasions, June 22 
and August 7 of this year, and received a detailed reply on 
September 14 from Theodore Olson on behalf of the American Bar 
Association's Standing Committee on the Federal Judiciary, 
where they have made very substantial changes and have 
conducted an additional inquiry.
    I do not want to overly focus on that, but I do want to 
make, without objection, these letters a part of the record. 
They may be the subject of further inquiry when the ABA 
testifies later.
    Let me yield at this time to Senator Kennedy.
    Senator Kennedy. Thank you, Mr. Chairman.
    Welcome.
    Mr. Wallace. Thank you, Senator Kennedy.
    Senator Kennedy. Just following along on the Legal Service 
program, you supported the $55 million cut in 1988, as I 
understand it.
    Mr. Wallace. As I just explained, President Reagan came up 
five-sixths of the way and I thought it made sense to meet him 
the rest of the way.
    Senator Kennedy. And then you asked for a reduction of 
another $13 million the following year. Is that right?
    Mr. Wallace. I do not remember that, Senator, but it may be 
the case. I have not had a reason to look at that record in a 
long time.
    Senator Kennedy. Well, the record is that there was a 
reduction, and you supported that.
    Mr. Wallace. I have no recollection of what budget request 
we made in 1989, but I am sure the record will show.
    Senator Kennedy. And you opposed, in the Legal Service, the 
National Support Centers which assist the youth, the migrants, 
the Native Americans that deal with employment, housing, and 
health care for low-income Americans. You wanted to eliminate 
that program.
    Mr. Wallace. We wanted to take the funds that were 
available to us and concentrate them on services in local 
programs. We reoriented funds to the local programs as opposed 
to these national think tanks. Yes, Senator, we did that.
    Senator Kennedy. Did you pay outside lawyers to lobby 
Congress to reduce the corporation's budget?
    Mr. Wallace. As I explained, we did have lobbyists who 
reduced the corporation's budget. I think some of them may have 
been hired on a contract basis, as Federal help often is.
    Senator Kennedy. So you did not mind spending the money to 
hire the lawyers to reduce the corporation's budget, but you 
were cutting back on the programs, such as the National Support 
Centers that were serving some of the poorest of the poor.
    Mr. Wallace. Having secured President Reagan's support for 
the program, I thought it was important to get folks up here 
and try to explain it to the Congress. And sometimes, yes, that 
costs money, Senator Kennedy.
    Senator Kennedy. Well, sometimes it does not. Sometimes it 
does not.
    Mr. Wallace. That is true.
    Senator Kennedy. As someone who has followed the Legal 
Service program very closely, Warren Rudman, during that period 
of time, very familiar with the program during the time on it, 
we did not seem, with those board members, had the confidence 
of the members of the Congress.
    Warren Rudman was very, very much involved in the support 
of those. I do not remember. I do not know of other agencies 
that go out and hire lawyers to reduce the budget of different 
committees.
    If we could get back, in response to questions on the Bob 
Jones case, you, I think, commented to the Chairman about that. 
That case obviously, as you know, is enormously important for 
civil rights because it held that private organizations that 
discriminate based on race are not entitled to the tax-exempt 
status.
    Most Americans would think that that was a matter of simple 
fairness. If you discriminate, you are not a charitable 
organization. Most Americans would understand that. So, you do 
not get the tax-exemption intended for charitable groups.
    So Republican and Democratic administrations, dating back 
to the Nixon administration, agreed with that basic principle. 
In fact, even when the Reagan administration decided to abandon 
the longstanding rule in the Supreme Court, prominent 
administration officials strongly objected, including Ted 
Olson, who was then the head of the Office of Legal Counsel, 
Roscoe Edgar, Commissioner of the IRS, and the Acting Solicitor 
General Lawrence Wallace.
    But you disagreed. Even after the Supreme Court ruled eight 
to one that discriminatory institutions are not entitled to 
tax-exemption, as I understand it, you continued to hold the 
opposite view.
    When you were nominated to head the Legal Services 
Corporation you testified that ``I personally believe that the 
interpretation of the Internal Revenue Code advanced by the 
Department of Justice which supported tax-exempt status for the 
university was correct.''
    Mr. Wallace. That was my testimony, Senator. I think if you 
read Congressman Lott's brief, you will see he never argued 
that discriminatory institutions were charitable. I do not 
think he ever made that argument, and I do not think I ever 
endorsed it.
    What he did say, is that it was stipulated in that case 
that Bob Jones was both religious and educational, and that was 
important to Congressman Lott because church schools in 
Mississippi were being harassed by the IRS. It was a statutory 
argument that, under the statute passed by Congress, it is 
sufficient to be religious or educational. It is not necessary 
that you also be charitable.
    The question of whether or not it was a good idea to give a 
tax deduction to a discriminatory institution was not the 
subject of Congressman Lott's brief. He discussed only the 
proper interpretation of the statute.
    Senator Kennedy. Well, do you still believe that private 
schools that discriminate based on race deserve to be tax-
exempt?
    Mr. Wallace. I have never believed that, Senator. I simply 
said that I believed that the administration interpreted the 
statute correctly in saying that religious and educational 
institutions, under the statute adopted by Congress, were 
entitled to that exemption.
    Senator Kennedy. And this is even after the Supreme Court 
ruled eight to one that discriminatory institutions are not 
entitled to the tax-exemption?
    Mr. Wallace. I think that my testimony came after that, and 
I said that I had been persuaded by the brief the 
administration had filed.
    Senator Kennedy. Well, let me get it straight. So you are 
saying that after the Supreme Court, your position changed. I 
think that is important to note, because I had understood you 
to continue to hold an opposite view from the Supreme Court 
decision. Am I wrong on that?
    Mr. Wallace. I mean, obviously, Senator, the Supreme Court 
has spoken and the law means what the Supreme Court says it 
means.
    Senator Kennedy. But what did you say? What was your 
position? Did you at that time change and alter your position 
or did you reaffirm your earlier position?
    Mr. Wallace. The position I took in the testimony then, 
which again was after the Supreme Court had acted, is that I 
thought the administration brief and Congressman Lott's brief 
fairly applied the statute. But I never said that I thought, as 
a personal opinion, discriminatory schools ought to get tax 
exemptions. I have never said that, and I do not say it now.
    Senator Kennedy. But the Supreme Court ruled eight to one.
    Mr. Wallace. Yes.
    Senator Kennedy. And you continue to hold your own view. 
You find that there are legal reasons for it. And I understand 
that, but I just wanted to be able to be clear for the record.
    Mr. Wallace. And the dissenter and the concurrence, I 
guess, at the Supreme Court also saw some legal reasons for it. 
Yes, Senator.
    Senator Kennedy. All right.
    Coming back to the Section 2 of the Voting Rights Act that 
outlaws the voting requirements that have the purpose or effect 
of discriminating based on race, it is one of the most 
effective aspects of the Voting Rights Act, as you will 
remember, in 1982 Congress amended Section 2 to overturn the 
Mobile case. The Voting Rights Act includes an effects test.
    That amendment outlawed voting practices whose effects 
would deny or dilute voting rights because of race, national 
origin, or language minority. Under the amendment, the voters 
can stop discriminatory practice without needing to dig up the 
ancient records to prove the intent, which may have designated 
the system earlier. That was not the position of Senator Hatch. 
I respect that. We have had long discussions and debates on it. 
I understand that.
    Our goal was to finally dismantle the voting--those that 
believed that we ought to have the effects test and believed 
that the 1965 Act, which talked about prohibiting 
discrimination, had been interpreted in that particular way up 
to the Mobile case.
    But anyway, in the 1982 Act, our goal was to dismantle Jim 
Crow, the voting systems that excluded minorities from 
participation in the democracy.
    Now, you have consistently opposed the Section 2 in efforts 
to end the minority vote dilution, and not just in the early 
days of your career. We see it even in positions you took as 
recently as 2003. I am going to give you a chance to react.
    Press reports state that as the Congressional staff in 1981 
and 1982, you worked hard to keep Congress from amending 
Section 2 to include the effects test. I can understand that. 
We had a Supreme Court nominee here that had the same position 
recently.
    When that effort failed, you attacked Section 2 in court. 
In Jordan v. Winter, you argued that Congress did not amend 
Section 2 to include an effects test, and that minorities still 
had to prove discriminatory intent if they wanted to stop 
practice to dilute their vote.
    The court called your argument ``meritless'' and held that 
it ``runs counter to the plain language of amended Section 2, 
its legislative history and judicial and scholarly 
interpretation.''
    In 1991, in Chisholm v. Edwards, you argue that Section 2 
does not apply to judicial elections at all. We had a brief 
comment on that exchange with the Chairman.
    The Supreme Court rejected that view in Chisholm v. Romer, 
noting that the 1982 amendments to Section 2 was intended to 
broaden the law, and that it would be anomalous to read it to 
withdraw judicial elections from coverage.
    In 2003, you argued in Branch v. Smith that when the 
legislature fails to redistrict to reflect the new Census data, 
the court must order at-large elections. Justice Scalia wrote 
the opinion rejecting your view.
    Had you prevailed, the only Mississippi district with an 
African-American would have been destroyed and it would have 
been far more difficult for African-Americans to elect their 
chosen candidates.
    Now, I am particularly troubled by your repeated position 
that Congress did not enact an effects test when it amended 
Section 2 in 1982. You should have known otherwise, having 
served in the Congress that the amendment was enacted.
    Do you still believe that Section 2 of the Voting Rights 
Act prohibits only intentional discrimination?
    Mr. Wallace. Well, no, I do not believe that. The Supreme 
Court has resolved that to the contrary.
    Senator Kennedy. You also argued that including an effects 
test in Section 2 would be unconstitutional. Is that still your 
position?
    Mr. Wallace. Well, I do not think that was ever my 
position. That was a position that was taken on behalf of the 
Republican Party in Mississippi, as I said. It was an identical 
position taken by the Louisiana government in the case of Major 
v. Trinh.
    These were issues that were thoroughly discussed at my last 
confirmation hearings. At that time I think they were well 
within the bounds of argument that a lawyer is entitled to make 
on behalf of his client.
    Senator Kennedy. Well, the question was, you also argued 
that including an effects test would be unconstitutional. The 
question is, is that still your position? I am not asking you 
whether you had that position previously. Is that still your 
position?
    Mr. Wallace. My answer is, it was never my position, 
Senator Kennedy. It was my client's position, which I argued on 
behalf of my client, as did other litigants in our part of the 
world at that time.
    Senator Kennedy. So you accept that Section 2 applies to 
judicial elections?
    Mr. Wallace. The Fifth Circuit originally ruled that it did 
not. I had actually forgotten I had been involved in that case 
until I read the long work those folks had done yesterday.
    I feel sorry for putting them through all of that to dig 
that up. But I was asked to participate in that case by our 
democratic Attorney General, Mike Moore.
    Mississippi was in that litigation. I was representing the 
State of Mississippi as an amicus in that case, and that was 
the position that the Democratic Attorney General and the State 
of Mississippi took. It was a position that originally was 
accepted by the Fifth Circuit.
    Senator Kennedy. Well, as I say, that is not the position--
you are saying, individually, that was not your position then, 
but you were taking it as an attorney. It is not your position 
now. You understand and support the constitutionality of the 
effects test.
    Mr. Wallace. I absolutely can.
    Senator Kennedy. All right. In 2003, on the Branch v. Smith 
case, you made an argument that would have eliminated 
Mississippi's only African-American district by relying on the 
1941 statute that clearly had been superseded.
    You had that exchange with the Chairman here. You said a 
lot of people do not know it, but there was a 1941 statute. But 
what you did not explain in response to the Chairman, was that 
that had been superseded. In rejecting your position by the 
1967 statute, it was superseded.
    So when you told the Chairman that a lot of people do not 
know about it, but there is a law on the books, a 1941 Act that 
permitted this kind of action, you did not mention to the 
Chairman that there had been a 1967 Act that superseded the 
1941 Act.
    Mr. Wallace. With respect, Senator, that was the argument 
that the losing side made in that case. By a six to three vote, 
the Supreme Court decided that the 1967 Act did not repeal, by 
implication, the 1941 Act. But they went on to decide that the 
1941 Act, though still on the books and applicable in certain 
cases, did not apply here.
    Senator Kennedy. Well, I hope the Chairman will have a 
chance to just hear what you said now and what is your 
response, because I listened very carefully and one would 
gather from your response to the Chairman--he is a superb 
lawyer and he can make his own judgment--but in rejecting your 
position in that case, Justice Scalia wrote that your view was 
contradicted both by the historic context of Section 2's 
enactment and by the consistent understanding of all courts in 
the nearly 40 years since that enactment.
    So those positions seem to go far beyond the fair advocacy 
of your client and create a strong impression that somehow you 
are pursuing an agenda.
    Mr. Wallace. Well, Senator, the only agenda I have ever 
pursued as a lawyer is the agenda of my client, in that case, 
the Mississippi Republican Party. As I say, there were six 
members of the court that agreed with us that the 1941 statute 
is still valid.
    Justice O'Connor and Justice Thomas agreed that it applied 
in this case, so we were wrong, but we were certainly not 
beyond the bounds of fair advocacy if we were able to have so 
much of our argument accepted by several members of the Supreme 
Court of the United States.
    Senator Kennedy. Is there any indication in your background 
and experience where you took the other side on Voting Rights 
cases? Did you ever represent plaintiffs in those cases?
    Mr. Wallace. Oh, absolutely, Senator.
    Senator Kennedy. Have we got the list of those cases?
    Mr. Wallace. It is in my questionnaire. I was hired by the 
governing board of a black majority county, Claiborne County. 
When the State legislature took away the right to tax the most 
valuable asset in their county, the Grand Gulf Nuclear Power 
Plant, they hired me to file a Voting Rights Act case on their 
behalf as plaintiffs to restore that power.
    We eventually settled the case. The county has been 
collecting, I think, an extra $4 or $5 million a year as a 
result of the positions I was asked to take on their behalf in 
a race discrimination voting rights case.
    Senator Kennedy. I know there are others. I just have two 
other areas I want to cover quickly, which I will try to do. In 
1989, the Legal Times wrote that you expressed resentment under 
Section 5, the landmark law requiring States with a history of 
discrimination obtain Federal pre-clearance for voting changes.
    You reportedly told the Legal Times, ``It bothers me to see 
Mississippi discriminated against,'' referring to Section 5's 
requirement, ``on necessary voting changes with the Federal 
Government.''
    Do you still think Section 5 of the Voting Rights Act 
discriminates against the covered States?
    Mr. Wallace. I do not remember talking to the Legal Times. 
I do remember what Governor Winter said when he came here 25 
years ago.
    Senator Kennedy. I am not asking you that.
    Mr. Wallace. I agree that Mississippi is ready for self-
government, Senator. But the Congress has seen to the contrary. 
Congress has been careful that no judge outside the District of 
Columbia is allowed to enforce Section 5.
    So anything I may have said on Section 5 in the past will 
have no effect on anything that I may rule, if I am confirmed 
to the Fifth Circuit, because you have denied that court 
jurisdiction over such cases.
    Senator Kennedy. Well, I have the document here that says 
``Wallace does acknowledge his resentment that Mississippi, 
along with other States, must submit redistricting plans to the 
Department of Justice.'' That is your--
    Mr. Wallace. I do not think resentment is the word. I have 
told you what I think, Senator.
    Senator Kennedy. But you still support Section 5?
    Mr. Wallace. It is a decision that Congress has made, and 
that Congress has full authority to make. That is what you are 
elected for, and Section 2 of the Fifteenth Amendment gives you 
that authority.
    Senator Kennedy. Finally, on prison safety, I know you 
responded to the Chair on this issue. When you worked for 
Senator Lott when he was a member of the House, you sent the 
Department of Justice a letter which bears your initials, 
``MBW'', objecting to the department's investigation of county 
jails in Mississippi and asking the department to allow the 
counties to meet lower safety standards in their jails. You 
understand that?
    Mr. Wallace. I think that was part of the letter that 
Congressman Lott then sent. Certainly all county jails wold be 
required to meet the standards set by the Constitution. That is 
what the Justice Department has the right to enforce.
    Senator Kennedy. Well, I assume, therefore, that you 
acknowledge that with the initials, the letter with ``MBW'' on 
it, was your letter.
    You also demanded to know why the investigating attorney 
had not been fired. That was in the letter. The letter led, as 
I understand it, the Justice Department to halt the 
investigation. Less than a year later, the fire occurred. It 
was a year later, a fire occurred in a county jail. Is that the 
sequence that you understand?
    Mr. Wallace. I do not think so, Senator. First of all, 
Congressman Lott's letter I drafted in my capacity as a 
staffer. It went up through his chief of staff and he sent it 
to General Schmultz.
    But I do not think that any investigations were stopped as 
a result of that letter, as I believe that there were 
inspectors in the jail within a couple of days after that 
letter was sent and within a couple of weeks before the fire 
actually took place. The inspections did not stop.
    Senator Brownback. Senator Kennedy, could I inquire, we 
have other members that want to ask some questions, too. I 
wanted to make sure that you were able to ask as many questions 
as you desired.
    Senator Kennedy. The Senator is quite appropriate. I was 
kind of surprised actually when the Chair went on for 25 
minutes, myself. But I understand the good Senators, and I 
thank you.
    Mr. Wallace. Thank you, Senator.
    Senator Brownback. Thank you. Thank you, Senator Kennedy.
    Mr. Wallace, I want to apologize in advance for not being 
here for a good portion of your presentation, so some of what I 
may ask may have been already covered. But if you will indulge 
me and still respond nonetheless, I would appreciate that. I 
think Senator Sessions has some questions as well.
    I gather from some of the discussion here, and certainly 
just on basic race relations have been called into question 
here. However, in looking at your background, I look at that 
and I do not see the basis in your background of people raising 
that, what you have attempted to do on race relations and to 
try to improve those.
    Would you articulate those issues to me and for me of your 
own background? Also, I think it would be useful, just for the 
record and for those that would watch and be interested in that 
issue as well, since it has come up so much.
    Mr. Wallace. As best I can tell, Senator, it all relates 
from the Voting Rights litigation that I was just discussing 
with Senator Kennedy. Most of that I have done on behalf of the 
Mississippi Republican Party. Sometimes the positions the Party 
takes are adverse to black voters, but not always.
    We have litigated on the same sides of some issues over the 
last three Censuses. Again, not everything I do is on behalf of 
the Republican Party. I have been hired by the Democratic 
Attorney General in Mississippi to help in such cases.
    But the ones that people seem to notice are the ones where 
the Republican Party gets into conflict with some of the 
African-American plaintiffs. That does happen. That seems to be 
the basis of the concern. I do not think anybody has ever 
accused me of having any personal racial prejudice. It is not 
true.
    I am involved in an integrated firm, an integrated school. 
You have got letters from two African-American ministers in the 
file to the Committee explaining the work we do on biracial 
communications in the Christian community in Jackson.
    Just this weekend, our church started, as we always do 
every fall, in partnership with the New Hope Baptist Church, an 
African-American church, to build a Habitat house in downtown 
Jackson. We work on it about eight weekends every fall. We have 
done it for years, and we did it again this week.
    So I think I am active in promoting racial reconciliation 
in Jackson, and have been for a long time. I think the 
criticism stems entirely from the litigation I was discussing 
with Senator Kennedy.
    Senator Brownback. Thank you.
    Senator Sessions?
    Senator Sessions. Well, I think you are correct.
    If anybody says the slightest word that the Voting Rights 
Act has any invalidity to it, has the slightest comma, jot, or 
tittle, it is not perfect, then you are a racist, that you are 
insensitive. That is not so.
    The Supreme Court has wrestled with these issues-- lots of 
these issues. The Congress has voted, and I voted, to extend 
the Voting Rights Act. But I do believe that the State of 
Alabama, in my heart of hearts, will give people a fair chance 
in court today, unlike what they would have gotten 50 years 
ago. I think there has been a big change in the South and a lot 
of people feel strongly about that. But we want harmony, we 
want progress.
    I was just glad to see your response to Senator Brownback's 
comments about the biracial outreach organization that you have 
been a part of, that your children attend integrated schools, 
that your church went with the New Hope Baptist Church to 
Honduras to do relief work and help poor people in Honduras. 
Did you attend any of those?
    Mr. Wallace. Senator, this year was my fourth year to go to 
Honduras. It is the second time that I have gone down with New 
Hope.
    Senator Sessions. Let me just ask you, one of your critics 
apparently said secretly through the ABA Committee that you do 
not like poor people. Were the people you were trying to help 
down there poor people or rich people?
    Mr. Wallace. They are mighty poor, Senator. That is one 
reason I am happy now that all of my family, at one time or 
another, has gone down there with me. They need to see the 
responsibilities that we have in this world, and I am glad to 
say that blacks and whites in Mississippi cooperate in meeting 
those responsibilities in Honduras and in downtown Jackson.
    Senator Sessions. Well, I would just say this. The ABA's 
rating, in my opinion, should not be an embarrassment to you, 
but should be an embarrassment to them. I have defended the 
ABA. I am not opposed to their process of seeking confidential 
information. But all of us have to know that when they do that, 
there are dangers in doing that. People have an opportunity to 
spread untruths and the nominee has no real ability to respond 
to it.
    But you got your undergraduate degree with Honors from 
Harvard University. You graduated from the University of 
Virginia School of Law, where you were on the Law Review there. 
You clerked for a Supreme Court Justice in Mississippi, and you 
clerked for the Chief Justice of the U.S. Supreme Court.
    Let me ask you this. After that experience, do you think 
you would have been able to obtain a job in a Washington or New 
York law firm if you so chose?
    Mr. Wallace. I suppose I could have, Senator. I never 
thought to try. I think I am probably the only Supreme Court 
law clerk in the last 50 years who never got so much as a free 
meal out of it. I was always going home to Biloxi. That is what 
I did. I am proud to have gone home to try to make Mississippi 
a better place. I have worked with a lot of lawyers in New York 
and Washington, and I think I could hold my own.
    Senator Sessions. I believe you could, too. I think that is 
why very, very important clients have chosen you to represent 
them in very, very important pieces of litigation. I think that 
is a testament to you.
    I want to ask you to just clarify something. You said that 
some of the litigation you had took positions that would be 
adverse to the position taken by black voters' lawyers in the 
case. When we do these cases, laws have to be decided, the 
Constitution has to be decided. Somebody wins and somebody 
loses. Is that not true?
    Mr. Wallace. I have a friend who said the lawyer who first 
hired him pointed up at all of the reporters on the shelf and 
said, ``Son, some lawyer lost every one of those cases in those 
books.'' It has been a helpful reminder, since I have lost a 
few of those myself.
    Senator Sessions. I thought it was an ideal of the ABA that 
a person should be an aggressive advocate for their client, to 
assert principles that might be victorious in litigation, and 
that that should not be held against the lawyer. Certainly that 
is true with regard to representing the most disreputable 
criminal.
    Lawyers are not condemned for trying to defend criminals, 
murderers, and rapists. Does that concern you that there seems 
to be a movement here to blame you for litigating a 
redistricting case in the way that your client would like you 
to litigate it?
    Mr. Wallace. As I have said, Senator, I do not know how I 
could possibly comment on what has impelled the ABA and the 
folks that have talked to them. I do understand it to be my 
responsibility as a lawyer to zealously represent my clients--
that is one of the canons of ethics--and to do so to the 
maximum extent feasible within the bounds of the law. I have 
always done that and no one has ever said anything to the 
contrary.
    Senator Sessions. Well, I see one case that you handled, 
Burrell v. State Tax Commission, in which apparently you 
represented a predominantly African-American county.
    Mr. Wallace. Yes.
    Senator Sessions. This was a county in which, I suppose, 
the officials and the majority in the county were African-
American. They contested an unfair tax matter they thought was 
harmful to them, the poor people in that county. Which side did 
you take?
    Mr. Wallace. I took the side of the elected officials and 
their voters in Claiborne County, the African-American majority 
county. I filed a Voting Rights case on their behalf. I filed a 
race discrimination case in State court.
    After litigating all the way to the Supreme Court of the 
United States and the Supreme Court of Mississippi, we were 
able to negotiate with the legislature a much fairer allocation 
of those tax dollars. I think that is a result with which my 
client was happy. I zealously represented those clients, as I 
have the Mississippi Republican Party.
    Senator Sessions. Well, I think that is what good lawyers 
do. That is something that the American Bar Association should 
recognize, I believe.
    What about this case you took on behalf of an African-
American man convicted of murder and sentenced to death, and 
you argued that, you briefed that, before the U.S. Supreme 
Court?
    Mr. Wallace. I do not want to claim too much. My partner, 
``Bunky'' Healy in our New Orleans office worked on that case 
for many years. When it was ready to go to the Supreme Court he 
asked me to help, because of my experience at the Supreme 
Court, in preparing the cert. petition and preparing the brief, 
and I did that.
    Senator Sessions. It is a fairly exhaustive thing if you go 
before the U.S. Supreme Court.
    Mr. Wallace. It is.
    Senator Sessions. Everything has to be exactly correct.
    Mr. Wallace. And we succeeded in obtaining a new trial for 
the plaintiff. He was condemned to death for murder. We thought 
that the State had not properly disclosed exculpatory evidence 
and we were able to convince the Supreme Court that that was 
right.
    Once again, representing people in a murder case does not 
mean you are in favor of murder. You represent your client the 
best way you possibly can, and in that way we were successful 
at the highest court in the land.
    Senator Sessions. Was this a rich white male or was this a 
poor African-American?
    Mr. Wallace. He was a poor African-American.
    Senator Sessions. And you gave your time and effort to 
helping get his conviction reversed?
    Mr. Wallace. That was my responsibility as a lawyer. Yes, 
sir, I did that.
    Senator Sessions. Mr. Chairman, I have gone past my time. 
But I think there is so much in here that we could continue to 
go and deal with that shows how wrong Mr. Wallace's critics 
are.
    It is just breathtaking to me to hear this criticism of Mr. 
Wallace--a person of your ability, who worked for Democratic 
Attorney General Mike Moore who was here testifying about the 
tobacco case, he was a lead plaintiff lawyer in that case for 
the whole country; you have represented African-American 
counties; you have represented people condemned to death.
    You turned down the opportunity to go to work for some of 
the biggest law firms in America at these incredible wages and 
prices they pay, and you have given yourself to Mississippi.
    If you have an occasion every now and then to express some 
doubt about any jot and tittle of the Voting Rights Act, that 
does not make you a racist, because there are some problems 
with that Act that all of us recognize and it can be improved, 
and in the years to come I am sure it will.
    Thank you, Mr. Chairman.
    Senator Brownback. Thank you, Senator Sessions.
    I do want to enter into the record for Senator Leahy a 
statement. He regrets he had to leave because of the late hour 
and other commitments.
    [The prepared statement of Senator Leahy appears as a 
submission for the record.]
    Senator Brownback. I want to turn this over to Senator 
Cornyn. I am going to have to slip out for a little bit myself.
    Senator Cornyn?
    Senator Cornyn. Thank you, Mr. Chairman.
    Welcome, and welcome to your family.
    Mr. Wallace. Thank you, Senator.
    Senator Cornyn. I am afraid I am experiencing a little 
sense of deja vu here today, having sat through the 
confirmation hearings of Chief Justice Roberts and Justice Sam 
Alito, and hearing some of what I would consider 
unsubstantiated, rather wild allegations made against 
particularly Judge Alito.
    Actually, I was reminded, in hearing about some of what 
appear to be anonymous, unsubstantiated allegations being made 
against you that unfortunately seem to have been included 
without much critique or reservation in the ABA report, of 
Senator Graham's memorable exchange with Judge Alito. I am 
going to ask you the same question that he asked him.
    Mr. Wallace, are you a bigot?
    Mr. Wallace. No, sir.
    Senator Cornyn. There are people who appear to be calling 
you a bigot.
    Mr. Wallace. I do not think anybody that knows me calls me 
a bigot, Senator.
    Senator Cornyn. Well, Mr. Wallace, this is my problem. I am 
reading page 10 of the American Bar Association testimony that 
we are going to hear today, and I just want to read a couple of 
paragraphs and ask for your reaction.
    On page 10, the first full paragraph, ``The investigation 
revealed that Mr. Wallace has the highest professional 
competence. Mr. Wallace possesses outstanding academic 
credentials, having graduated from Harvard University in 1973 
and the University of Virginia Law School in 1976. He was a law 
clerk to former Chief Justice William H. Rehnquist from 1977 to 
1978.
    Mr. Wallace is often described as a legal scholar of strong 
intellect, a quality lawyer with a quick legal mind. He is a 
highly skilled and experienced trial and appellate lawyer who 
is considered a go-to lawyer on certain litigation matters in 
Mississippi.
    As discussed below, even those persons with serious 
concerns regarding Mr. Wallace's judicial temperament describe 
him as a brilliant lawyer, one who could ably master legal 
issues before him as a judge.
    The investigation also established that Mr. Wallace 
possesses the integrity to serve on the bench. His integrity 
was described by many as `impeccable,' `outstanding', `the 
highest,' `absolute,' and `solid'. Persons throughout the legal 
community stated that Mr. Wallace is a fine family man, an 
excellent husband and father.''
    Well, you can imagine how confused I am when I read that 
the American Bar Association has said that you are a person of 
integrity and repeating the glowing accolades that I have just 
recounted on page 10 in these two paragraphs in their 
testimony, but at the same time seem to allege that you do not 
have the temperament to deliver equal justice under the law, 
that you have insufficient regard for poor people and 
minorities.
    If that were true, Mr. Wallace, I would think that you were 
not a man of integrity. I do not see how you can be a person of 
integrity and hold those kind of views with which you have been 
charged.
    Can you perhaps try to help me understand what appear to be 
irreconcilable contentions about you?
    Mr. Wallace. I assume that the writer of that testimony 
must have a different understanding of integrity than the one 
you and I share, Senator. Integrity means wholeness.
    It means that you behave the same way, honorably and 
consistently all the time. A person who has integrity cannot 
possibly treat people differently on no basis whatsoever.
    Two weeks ago, the sermon was on the book of James, the 
part where James tells people not to be respecters of persons, 
not to treat rich people and poor people differently.
    If there had been white people and black people in 
Palestine and Israel in those days, he would have said that, 
too. You cannot possibly behave your life consistently with 
that admonition and not be a person of integrity. I mean, that 
is what I think integrity means. It forecloses the kind of 
charges that the association has brought against me.
    Senator Cornyn. Well, the other concern I have, Mr. 
Wallace, is that, of course, the way the American Bar 
Association has conducted its review means that the persons who 
made these statements against you in claiming your lack of 
integrity--that is my interpretation--are anonymous.
    The American Bar Association's own rules, as I understand 
them, appear to foreclose using information in its report that 
is not presented to the nominee so that the nominee can refute 
it. Do you read the rules differently from me?
    Mr. Wallace. No, I read them the same way, Senator.
    When I raised that with the last group of investigators who 
came to see me, they told me that I did not understand the 
rules. So, I hope you will be able to get them to explain them 
to you while they are here today.
    Senator Cornyn. I hope so, too.
    You have been criticized for the clients that you have 
chosen to represent. Do you feel like that is a fair criticism 
for a lawyer who takes on the responsibilities as an advocate 
in an adversarial system of justice?
    Mr. Wallace. I do not think it is fair, and certainly in my 
early days in Biloxi you did not get to necessarily choose to 
represent clients. In a small town, if somebody needs help, you 
represent them, and that is what we did. But I have been happy 
to represent people who come to me.
    As I said, I have been hired on several occasions by our 
Democratic Attorney General in Mississippi. We work together. 
We know each other. Even though we may be on different sides of 
the political fence, when we can be of assistance to each other 
we do that, and I have been happy to work with people from all 
parts of the political spectrum in Mississippi in my law 
practice.
    Senator Cornyn. You have also been criticized for making 
legal arguments that did not ultimately prevail in court. Do 
you know any lawyer that has not made at least one legal 
argument that has not prevailed in some court?
    Mr. Wallace. None that has ever been to court. You do not 
keep a thousand batting average very long when you are a 
litigator.
    Senator Cornyn. Do you understand that the American Bar 
Association's own standards on professional legal conduct state 
that ``a lawyer acts properly in arguing for an extension, 
modification, or reversal of existing law'' ?
    Mr. Wallace. I do understand that to be the rule. I think 
it is also the rule under Rule 11. I have done that on 
occasion, and I have always been careful to identify to the 
court when I am doing that, that there is authority adverse to 
me and we ask you to reconsider that authority and come to a 
different conclusion.
    But I have never hidden authority from the court. I have 
gone to the court and said, if you adhere to authority I am 
going to lose. That is a fact. But here is why I think it ought 
to be reconsidered. That is something that lawyers not only are 
entitled to do, but in certain circumstances it is part of the 
zealous representation of your clients that you are required to 
do.
    Senator Cornyn. Getting back again to these anonymous 
allegations made without apparent, or at least in the record, 
without substantiation or further elaboration in the record, as 
a lawyer practicing in the State and Federal courts, in 
Mississippi and elsewhere, you are familiar with the hearsay 
rule, right?
    Mr. Wallace. I am, indeed.
    Senator Cornyn. And do you know any court in the Nation 
that would admit anonymous allegations for proof of the truth 
of the matter asserted therein?
    Mr. Wallace. There are about 25 exceptions to the hearsay 
rule, as the Senator knows. My poor daughter had to study them 
all last year. But I do not know of any one that would apply to 
this hearsay, Senator.
    Senator Cornyn. I think she agrees with you.
    [Laughter.]
    Mr. Wallace. That it was a bad thing she had to study? I 
will bet she does.
    Senator Cornyn. Well, you also stand accused, Mr. Wallace, 
of representing unpopular clients. How do you plead to that?
    Mr. Wallace. I do not doubt that I have done that on 
multiple occasions.
    Senator Cornyn. Do you know any lawyer that has represented 
universally popular clients?
    Mr. Wallace. If a lawyer has represented only people that 
are popular, he is probably not paying close enough attention 
to his responsibilities to the public and to the Bar. I am not 
saying it is impossible, but I do not know of anybody.
    Senator Cornyn. Tell me about some of the unpopular clients 
that you have represented.
    Mr. Wallace. Well, we have already discussed the capital 
case that we brought that we defended. Actually, we defend 
capital cases regularly. One of my partners in Jackson came to 
us from the Capital Defense Fund and he still does pro bono 
work. He is an excellent appellate lawyer. Part of my job is to 
help him with his briefs and his arguments and get him ready to 
go to court.
    But certainly the case we brought on behalf of Claiborne 
County was unpopular. The legislature had gone so far to try to 
amend the Constitution to take this money away from this 
majority-black county, and that is what made it into a Voting 
Rights Act case, because there was an election, and they 
convinced hundreds of thousands of people in Mississippi they 
ought to take this money away. I do not think I have ever had a 
client who had more people vote against him in an election than 
Claiborne County did. So, I would say they were unpopular.
    Senator Cornyn. Mr. Wallace, one of the things that 
concerns me about the American Bar Association report, is 
apparently both the Chairman of the Standing Committee, as well 
as the former president of the American Bar Association had 
been locked in some rather pitched battles with you when you 
were on the Board of Directors for the Legal Services 
Corporation.
    I am sorry I had to step out a little bit earlier. But have 
you had a chance to explain a little about what those fights 
were about?
    Mr. Wallace. I do not think I have, Senator. We had a lot 
of difficulties. I explained in general terms that what we were 
doing in the Reagan administration was trying to reform Legal 
Services, to take it out of political litigation and put it 
into providing the ordinary needs for ordinary people. We had 
opposition to that.
    Both Mr. Greco and Mr. Tober testified before our board and 
before our Committee against the changes that we were 
proposing. We heard them. I think we heard them politely.
    I think we asked them questions about their position that 
were fair questions under the circumstances. Whether that has 
had any effect on what they have done in their offices in the 
ABA, I just have no way of knowing. I do not think I have seen 
either one of them in 20 years.
    Senator Cornyn. As Chairman of the Legal Services 
Corporation, you advocated greater accountability and more 
effective legal services to the poor within the organization.
    Can you explain how you envisioned improving the quality of 
legal services to the poor by adopting the measures that you 
were advocating or the reforms that you were seeking to 
accomplish?
    Mr. Wallace. Two things were very important to me. In the 
early 1980s, you will remember--and I suppose we always have 
budget difficulties in this country--it was a very tight budget 
time and the appropriation of the corporation had been cut 
back.
    I saw no prospect that Congress was ever going to be able 
to appropriate all the funds to meet all the needs of poor 
people under a pure appropriations system. We went out and 
promoted other ways to provide legal services to the poor. We 
helped start the IOLTA program that many States use now, 
Interest on Lawyers Trust Accounts. I thought that might be 
something you would run into in Texas.
    Senator Cornyn. No. I am familiar with it. I just wanted to 
make sure the record was clear and we did not lapse into 
acronyms that no one understood.
    Mr. Wallace. Thank you. I apologize for that. We worked 
very hard to get private lawyers involved in giving pro bono 
services. Our program in the Mississippi Bar, I think, has won 
awards on several occasions for involving private attorneys in 
services to the poor.
    In order to be able to reach out to other sources of 
funding, I thought--and I think Congress believed--that we 
needed to cut back on cases that were widely perceived as 
political; whether they were or not might not make so much 
difference as the fact that they were perceived that way.
    By getting Legal Services out of those political cases, we 
have had new sources of funding in Mississippi. The Chief 
Justice and the Supreme Court have imposed rules that collect 
more funds for legal services for the poor. The legislature has 
passed, and the Governor has signed, increases in filing fees 
to give more funds.
    I supported those programs. They could do that because they 
knew that now that money would go to Legal Services programs 
who would put it to good use and who would keep it out of 
politics. That is what I was trying to do 20 years ago. I think 
we finally succeeded.
    Senator Cornyn. And by your success, you mean that you have 
been able to provide a means of legal representation to people 
who otherwise would not be able to afford it?
    Mr. Wallace. That is what I was concerned with 20 years 
ago. I am still concerned with it. I am proud to say that it is 
still being provided in more and different ways than it had 
ever been before.
    Senator Cornyn. Mr. Wallace, some of those who criticize 
your tenure at the Legal Services Corporation fail to remember 
that much of what you implemented during that time was 
essentially ratified when Congress, in 1996, enacted similar 
reform legislation. How, in your opinion, have these reforms 
improved Legal Services to the disadvantaged?
    Mr. Wallace. Well, I am proud to say that the reforms that 
we did through a regulatory fashion apparently worked so well--
and of course I had been gone 6 years by the time that bill was 
passed--that Congress did adopt them into law. I think they are 
continuing to work well today.
    As I have just said, I think I cannot tell you what is 
going on in 49 other States, but in Mississippi I think we are 
very happy and very proud of the work, both of our Legal 
Services programs and of the volunteer work being done by 
members of the Bar.
    Senator Cornyn. Mr. Chairman, I would ask unanimous consent 
to make part of the record a letter addressed to Michael Greco, 
immediate past president of the American Bar Association, and 
copies sent to both the Chairman and Ranking Member, signed by 
288 leaders in the American Bar Association expressing concern 
that the American Bar Association violated its own rules in the 
manner in which they conducted the evaluation in this case, and 
also they happened to mention the re-rating of Brett Kavenaugh, 
who now serves in the DC Court of Appeals, and raises the 
pertinent question about the obligation of a member of the 
Standing Committee to recuse themselves when there is a 
conflict of interest, or perhaps the appearance of partiality 
of a nominee, and I would ask that that be made a part of the 
record.
    Senator Sessions. It will be made a part of the record.
    Senator Cornyn. Thank you, Mr. Wallace. I believe that is 
all I have for now.
    Senator Sessions. Thank you, Senator.
    Mr. Wallace, I want to followup a little bit on that 
conversation you have had with Senator Cornyn, one of the able 
members of our Committee and former Justice on the Texas 
Supreme Court. I believe I heard you say that when you were 
Chairman of the board of the Legal Services Corporation--
attempting to effect a reform of that corporation to focus its 
attention on actually representing poor people and to reduce 
the number of political-type lawsuits they were filing, reforms 
which I think most Americans supported at that time and still 
do--that one or more of the members of the ABA who were 
involved in your rating testified before you to criticize the 
decisions you made at that time or to oppose the decisions you 
made.
    Mr. Wallace. Mr. Tober and Mr. Greco both testified before 
our board. Ms. Tucker organized a panel discussion held out in 
Honolulu at the ABA meeting, the sum and substance of which was 
quite strident criticism of our board. Yes, Senator.
    Senator Sessions. And let me get this straight. Are they 
involved in the Committee to do your evaluation?
    Mr. Wallace. Mr. Greco appointed them. Mr. Tober was the 
chairman, Ms. Tucker is a member.
    Senator Sessions. So all three are directly involved in 
your evaluation and they were the ones who were leaders coming 
to Washington, DC to testify in opposition, conducting hearings 
in Hawaii at a panel at the ABA meeting to criticize your 
decisions that were really ratified by this Congress as time 
went on.
    Mr. Wallace. I believe that to be the case, Senator.
    Senator Sessions. I would offer for the record an article 
from the Wall Street Journal of July 26, the lead editorial. 
``An ABA Hit Job,'' is the title of it. The subtitle is, 
``Political Payback Against a Judicial Nominee''.
    They trace the difficulties you are having today to the 
fact that the ABA did not agree with your positions at the time 
you headed the Legal Services Corporation. I think you handled 
yourself well in that difficult time, and I do believe Congress 
has ratified your decisions.
    I do believe that the Legal Services Corporation does not 
have the kind of criticism and carping that was constant before 
those reforms occurred.
    Mr. Wallace. Well, thank you, Senator. If I may say, just 
in case somebody puts in the New York Times editorial to the 
contrary later, I do think it is pretty good for a Biloxi boy 
to be batting 500 in Manhattan.
    Senator Sessions. Well, you cannot win them all, as they 
say.
    Mr. Wallace. I do not expect to.
    Senator Sessions. Just briefly, because I made comments 
about the Voting Rights Act. The Voting Rights Act, I believe, 
was pivotal in the South in empowering the African-American 
community. What are your thoughts, briefly, about the 
importance of that Act in changing the nature of politics and 
justice and equality in the South?
    Mr. Wallace. They are the same as I stated them 23 years 
ago. I do not think you could grow up in the South and not know 
how important it is to bring people into the system.
    Our problem in Mississippi, when I grew up, is that we had 
a closed political system. It was not just closed against black 
people, it was closed against a lot of other people as well.
    We worked very hard to build a competitive system in 
Mississippi. The expansion of the electorate did a great deal 
for that. I think Republican Members of Congress fully 
supported the Voting Rights Act. They put when people could 
vote. When two parties could compete for their vote, then you 
get a better system of government. I am proud of what we have 
done with that in Mississippi.
    I think if you see how Mississippi has conducted itself 
over the last year in very difficult circumstances, Republican 
and Democrat, black and white, I think you show that we have 
matured, that we are able to cooperate, even while we compete. 
The Voting Rights Act has been a very big part of what we have 
been able to accomplish.
    Senator Sessions. Any criticism you have is not for the 
utility or the validity of the Act.
    Mr. Wallace. None whatsoever, Senator.
    Senator Sessions. Thank you. All right.
    Do you have anything else you would like to add to this 
gathering before we go to the next panel?
    Mr. Wallace. Mr. Chairman, I deeply appreciate the 
committee's patience and their courtesy. I know how late it is 
in the session. If there has ever been a Committee that has had 
more difficult work to do under any session of Congress than 
this one, I do not know what it is. You all have had a hard 
task all year.
    You have been unfailingly courteous to me throughout this 
process and I deeply appreciate your making the time to 
consider my nomination before you go home.
    Senator Sessions. Very good. Thank you very much.
    We will go to the next panel. Judge Bryant, I believe, is 
next.

STATEMENT OF VANESSA LYNNE BRYANT, NOMINEE TO BE U.S. DISTRICT 
             JUDGE FOR THE DISTRICT OF CONNECTICUT

    Judge Bryant. Good afternoon. I would like to thank the 
Chairman and the members of the Committee for affording me this 
opportunity to further my nomination to serve as a judge of the 
District Court of the State of Connecticut. I would also like 
to thank my two Senators Christopher Dodd and Joseph Lieberman, 
as well as my Governor, Jody Rell, for their support for me in 
this endeavor.
    My family is here present with me: my husband, Tracy Rich, 
who is the executive vice president and general counsel of the 
Phoenix Companies in Hartford, Connecticut; my son, Bryant 
Rich, who is a senior at Bowdoin College; my daughter, Dana 
Rich, who is a sophomore at Oberlin College; my mother, Muriel 
Bryant, who is retired, residing in Farmington, Connecticut, 
after retiring from Waldenbook as the most tenured employee 
ever in the company's history.
    [The biographical information of Judge Bryant follows.]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    
    Senator Sessions. Thank you very much, Judge Bryant. Thank 
you for introducing your two children who attend two superb 
liberal arts colleges in America, both of which are known for 
their abolitionist spirit that led to changes that occurred 
throughout our country in how the African-American community is 
treated.
    You served as a Superior Court judge, as a presiding judge, 
and as an administrative judge since 1998. Would you give us 
some thoughts about how you would approach the challenges of a 
district judge with the experience that you have already?
    Judge Bryant. I would approach those challenges in similar 
fashion to that which I utilized in performing the functions of 
a Superior Court judge. I am a tireless worker. I research 
thoroughly. I listen actively and attentively. I decide fairly, 
decisively, and efficiently.
    Senator Sessions. And how long have you been serving in 
judicial or judicial-like positions, how many years of 
experience?
    Judge Bryant. For 8 years, sir.
    Senator Sessions. And tell me about the Superior Court 
judgeship, what your duties are there and what kind of rulings 
you must make there.
    Judge Bryant. The Superior Court is the trial-level court, 
as is the District Court. My responsibilities have been varied 
over the 8 years that I have served. Initially I was assigned 
to the Criminal Division. I was assigned to that division for 
two 1-year terms. I tried serious felony cases, including two 
murder cases. I have presided over in excess of 20 serious 
felony criminal cases.
    After that assignment, I was afforded an opportunity to 
serve as a civil judge. I was assigned to the Hartford Judicial 
District. I presided over civil trials for 2 years. Thereafter, 
I was appointed the presiding judge for the New Britain 
Judicial District.
    I was then asked to assume the role of administrative judge 
in the Litchfield Judicial District. The presiding judge is 
responsible for the civil docket. The administrative judge is 
responsible for the overall operation of the court facilities.
    In my capacity as administrative judge in Litchfield, I was 
also the presiding judge for civil, criminal, family, and 
juvenile. I was responsible for all four dockets and three 
courthouses in that judicial district.
    Thereafter, I was appointed the presiding judge in the 
Hartford Judicial District Civil Division. There I am 
responsible for the management of the civil docket. I was 
reappointed to that position in September of 2005, and 
reappointed yet again in September of 2006 after wide 
publication of the ABA opinion of me.
    Senator Sessions. We have received a number of letters 
supporting your nomination. They note your excellent ability to 
manage your docket and the courtroom efficiently. As you know, 
there is a fine line between managing an efficient docket--and 
you have to be strong to do that--and ensuring the litigants a 
fair opportunity to be heard in court.
    Would you discuss your philosophy and how you approach that 
role of a judge?
    Judge Bryant. Absolutely. There are competing interests. 
There is the broader interest of managing the docket and 
operating the judicial branch in an efficient fashion, and then 
there are the interests of the litigants which sometimes are in 
variance with the overall systematic obligations of a presiding 
judge.
    I have endeavored to serve both of those masters, first by 
adopting standing orders, standing orders that specify exactly 
what the rules of procedure are in our district so that those 
standing orders are sent to attorneys well in advance of the 
time when they are ordered to, or have requested an 
opportunity, to appear in court.
    We attempt mightily to ensure more than adequate notice of 
obligations to appear in court. We also communicate verbally in 
situations where we find that there may have been 
miscommunication, if people are not present. We also have under 
our rules of practice the ability to file a Motion for 
Reconsideration, Motion for Re-Argument. Our rules of procedure 
and--
    Senator Sessions. Judge Bryant, as you deal with those 
issues and effect the rules that you have established, which I 
think is important, do you feel like you give litigants the 
chance to state their case if they disagree or you have to hold 
them to account in your courtroom?
    Judge Bryant. Absolutely.
    Senator Sessions. Do you feel a responsibility to do that?
    Judge Bryant. Absolutely. A judge cannot make good 
decisions without having full information.
    Senator Sessions. And are you telling this Committee that, 
if you are confirmed, that you will give litigants before you 
an opportunity to be heard, even if you rule against them, and 
that you would evaluate and consider the arguments that they 
make?
    Judge Bryant. Without any doubt.
    Senator Sessions. The ABA rating raised some important 
issues. They say that you do not have good judicial 
temperament. That is a matter of importance. It is difficult to 
ascertain exactly what they mean when they say that.
    Could you respond to that and share with us, briefly, how 
you think you handle cases?
    Judge Bryant. Senator, I wish I could answer that question. 
But unfortunately, like Mr. Wallace, I had one interview with 
the ABA. When I received their letter, I was surprised. Their 
letter was faxed to our clerk's office. It was brought to me by 
a Clerk of the Court. I was so stunned, that I called Mr. 
Tober, who informed me that I would learn of the reasons for 
their decision at my confirmation hearing.
    So I do not know the context of any of those comments and I 
cannot respond to them, except I can tell you that in the State 
of Connecticut we have an anonymous evaluation system whereby 
all attorneys who appear before a judge for an hour or more are 
sent a confidential evaluation.
    Senator Sessions. Well, I will bet Judge Cornyn was glad 
they did not have that in Texas.
    [Laughter.]
    He would have done well, I have no doubt.
    Judge Bryant. And Senator, my comportment ratings are in 
the 80th and 90th percentile.
    Senator Sessions. That is interesting. I was not aware of 
that. So the lawyers in your district are encouraged to submit 
confidential, secret--they do not have their names on it--
evaluations of you, and you have received high ratings.
    Judge Bryant. That is correct.
    Senator Sessions. One more question. One of the criticisms 
was that you have a lack of professional expertise and 
knowledge of the law.
    How would you respond to that?
    Judge Bryant. I have an extensive legal experience, which 
is outlined in my Senate questionnaire and in my resume, which 
I believe you have. I have been a partner in a Wall Street law 
firm. I have been a Chapter 13 bankruptcy trustee. I have been 
general counsel of a housing finance authority that had in 
excess of $300 million of bonds outstanding.
    I have been a private placement and commercial real estate 
attorney, handling transactions in the millions, in the tens of 
millions, and the hundreds of millions of dollars. I have been 
described by the Chief Court Administrator of the State of 
Connecticut as a ``super-star''.
    Senator Sessions. Well, that is good. Thank you for those 
comments. I would note that even though you did not receive a 
``Qualified'' rating, that was not a unanimous vote of the 
committee.
    Senator Cornyn?
    Senator Cornyn. Thank you, Mr. Chairman. I just have a 
couple of things.
    Judge Bryant. Certainly.
    Senator Cornyn. Judge Bryant, I just want to make sure that 
I understand what you just said a moment ago. Did you say you 
asked the Chairman of the Standing Committee at the ABA what 
the basis for the ``Unqualified'' rating was, and that he said, 
``You will find out at your hearing'' ?
    Judge Bryant. Yes.
    Senator Cornyn. Mr. Chairman, I have various letters of 
support for Mr. Wallace and Judge Bryant's nominations for the 
record. I would ask unanimous consent that they be made part of 
the record.
    Senator Sessions. They will be made a part of the record.
    Senator Cornyn. Thank you very much.
    Judge Bryant. Thank you.
    Senator Sessions. Thank you very much, Judge Bryant. We 
appreciate your coming. Is there anything else you would like 
to share about the process of evaluation that you have 
undergone? We give respect to the ABA ratings. I do, at least. 
I have always felt that they have an opportunity to bring us 
valuable information. But I also know that there are dangers in 
secret processes that receive information in that fashion. But 
do you have any other comments? I just want to give you an 
opportunity.
    Judge Bryant. No, sir. I do not care to comment further.
    Senator Sessions. Well, thank you very much.
    Judge Bryant. Thank you.
    Senator Sessions. We appreciate your testimony.
    You should be congratulated for winning the support of two 
of our senior Democratic Senators and the Republican President 
of the United States for this important position. I think it is 
something that you can take pride in. I think it indicates that 
you have great support. Thank you very much.
    Judge Bryant. I certainly do. Thank you all very much.
    Senator Sessions. Our next panel would be Panel IV, Roberta 
B. Liebenberg, Chair of the American Bar Association; Kim 
Askew, Fifth Circuit Representative, Standing Committee on the 
Federal Judiciary, American Bar Association; Thomas Z. Hayward, 
Former Chair, American Bar Association; Pamela Bresnahan, 
Former DC Circuit Representative, American Bar Association; and 
C. Timothy Hopkins, Former Ninth Circuit Representative, 
American Bar Association.
    We have quite a panel. The hour is running a bit late, but 
I think you are entitled to, each of you, make a statement as 
you wish. Remember that we could make a fuller statement a part 
of the record if you choose.
    I guess we will start in the order shown on the panel.

    STATEMENT OF ROBERTA B. LIEBENBERG, CHAIR, AMERICAN BAR 
   ASSOCIATION, STANDING COMMITTEE ON THE FEDERAL JUDICIARY, 
                   PHILADELPHIA, PENNSYLVANIA

    Ms. Liebenberg. Good afternoon, Mr. Chairman and Senator 
Sessions. My name is Roberta Liebenberg. I practice in 
Philadelphia, Pennsylvania.
    Senator Sessions. Ms. Liebenberg, would you pause? We would 
ask you to stand and take the oath. I am sorry I forgot. All of 
you, if you would. If you would raise your right hand.
    [Whereupon, the witnesses were duly sworn.]
    Senator Sessions. I think that is the Senate oath. Having 
been around courthouses a few times, maybe I am just 
remembering the familiar one from there.
    Well, Ms. Liebenberg, thank you very much.
    Ms. Liebenberg. Thank you. As I said, my name is Roberta 
Liebenberg. I practice in Philadelphia, Pennsylvania. Since 
August of 2006, I have had the honor of chairing the ABA's 
Standing Committee on the Federal Judiciary.
    Present with me today are Kim Askew and Tom Hayward, who 
conducted the evaluations of Mr. Wallace in the spring of 2006. 
Also present are Pamela Bresnahan and Timothy Hopkins, who 
conducted the supplemental evaluation of Mr. Wallace this 
month. Ms. Askew and Ms. Bresnahan will testify concerning 
those evaluations.
    Our Committee takes very seriously its responsibility to 
conduct a fair and impartial peer review of the professional 
qualifications of nominees to the Federal bench without regard 
to their ideology or philosophy. We focus on only three 
criteria: professional competence, integrity, and judicial 
temperament.
    We examine the legal writings of the nominee, as well as 
decisions where the nominee has appeared as counsel. In 
addition, we conduct extensive interviews of numerous members 
of the legal community who are familiar with the professional 
qualifications of the nominee.
    The evaluations of Mr. Wallace by our Committee over the 
years have been thorough and comprehensive. Over 120 judges and 
lawyers have been interviewed. Representatives of the Committee 
conducted a number of interviews of Mr. Wallace that totaled 
over 12 hours.
    He was afforded the opportunity in each of those interviews 
to address and rebut adverse comments that had been made about 
him. As has been noted, there was widespread agreement among 
the persons who were interviewed about Mr. Wallace that he 
satisfied the committee's criteria of professional competence 
and integrity.
    He has outstanding academic credentials as a former law 
clerk to Chief Justice Rehnquist and has been praised as a 
skilled and experienced trial and appellate attorney.
    However, numerous concerns were raised about Mr. Wallace in 
connection with the criterion of judicial temperament. That 
criterion is defined by our Committee as compassion, 
decisiveness, open-mindedness, courtesy, patience, freedom from 
bias, and commitment to equal justice.
    These concerns regarding judicial temperament were 
expressed not just by a particular segment of the bar, but 
instead by a broad cross-section of judges and lawyers with 
different backgrounds and viewpoints.
    In accordance with the Standing Committee's established 
procedures, a supplemental evaluation was conducted of Mr. 
Wallace after his nomination was resubmitted by the President 
on September 5th.
    This supplemental evaluation was conducted by Ms. Bresnahan 
and Mr. Hopkins, who were not members of the Committee when the 
May, 2006 evaluation was performed. Their supplemental 
evaluation raised the same concerns about judicial temperament 
that had been raised by Ms. Askew and Mr. Hayward in their 
prior evaluations of the nominee.
    The Standing Committee is comprised of 14 lawyers from each 
of the judicial circuits. Half of the 14 voting members of the 
Committee are new and were appointed by the new ABA president, 
Karen Mathis, in August, 2006.
    After careful consideration of the supplemental evaluations 
conducted this month, as well as the material pertaining to the 
prior evaluations of Mr. Wallace, the new Committee unanimously 
voted Mr. Wallace ``Not Qualified'' for a position on the U.S. 
Court of Appeals for the Fifth Circuit. This is the same rating 
previously given to him by unanimous vote in May of 2006.
    Ms. Askew will testify concerning the evaluation she 
conducted in the spring of 2006. Ms. Bresnahan will then follow 
to discuss the supplemental evaluation that was conducted this 
month.
    Thank you for your consideration.
    [The prepared statement of Ms. Liebenberg appears as a 
submission for the record.]

   STATEMENT OF KIM J. ASKEW, FIFTH CIRCUIT REPRESENTATIVE, 
   STANDING COMMITTEE ON THE FEDERAL JUDICIARY, AMERICAN BAR 
 ASSOCIATION, DALLAS, TEXAS; ACCOMPANIED BY THOMAS Z. HAYWARD, 
  FORMER CHAIR, 2003-2005, AMERICAN BAR ASSOCIATION, STANDING 
     COMMITTEE ON THE FEDERAL JURIDIARY, CHICAGO, ILLINOIS

    Ms. Askew. Thank you, Mr. Chairman, members of the 
committee, my Senator. My name is Kim Askew. I have practiced 
in Dallas, Texas for 23 years.
    As the Fifth Circuit representative to the Standing 
Committee, I conducted the investigation into the professional 
qualifications of Mr. Wallace when he was first nominated 
earlier this year.
    My investigation focused only on Mr. Wallace's professional 
qualifications: his professional competence, his integrity, and 
judicial temperament. As the Committee is aware, the Standing 
Committee unanimously rated Mr. Wallace ``Not Qualified'' for 
service on the Fifth Circuit.
    There has been a lot of testimony today regarding this 
investigation and I will briefly outline for you how this 
investigation was actually conducted and the serious issues 
raised regarding Mr. Wallace's temperament, which resulted in 
the ``Not Qualified'' rating.
    I confidentially interviewed 69 lawyers and judges. The 
lawyers and judges interviewed were identified from the 
Personal Data Questionnaire that Mr. Wallace provided to the 
Justice Department and was subsequently obtained by this 
committee.
    I also surveyed docket sheets to identify other cases that 
Mr. Wallace had litigated. Our purpose is to obtain as wide a 
range of cases as possible. During the course of my interviews, 
lawyers and judges identified other persons with knowledge of 
Mr. Wallace's professional qualifications.
    To the extent those persons were available, I also 
interviewed those persons. Mr. Wallace himself identified a 
couple of lawyers that I had already interviewed as part of my 
process.
    Our interviews covered a wide spectrum of the legal 
community. This is consistent with requirements of our 
Backgrounder. This included lawyers of all stripes, large- and 
small-firm lawyers, solo practitioners, opposing counsel of Mr. 
Wallace, his co-counsel, Federal and State judges throughout 
the Fifth Circuit, and certainly in the State of Mississippi 
where Mr. Wallace practices, Bar officials, law school deans.
    Most of the persons that I interviewed had been involved in 
a variety of significant cases with Mr. Wallace, and this was a 
fact that I could independently verify from reported and 
unreported cases and from the docket sheets that I reviewed.
    Some of the individuals that I talked to had known Mr. 
Wallace his entire life, others had known him throughout his 
professional career. Many who gave us comments considered 
themselves friends of the nominee. Those who gave adverse 
comments were frequently in that category. All of the comments 
were based on personal interactions that Mr. Wallace had with 
the persons identified. These were well-informed individuals 
with knowledge of this nominee.
    My interviews were detailed and rather thorough. Some of 
these interviews lasted up to 45 minutes. In cases in which 
lawyers and judges provided adverse information, I often 
interviewed those lawyers and those judges on more than one 
occasion.
    We sought corroborating information. We sought the identity 
of other individuals in the community who could further 
substantiate what we were told. We asked, or I asked, detailed 
questions because we wanted to ferret out the basis for the 
concerns raised regarding Mr. Wallace. I wanted to ensure that 
these comments were based on interactions and personal dealings 
with Mr. Wallace and not just based on rumor or bad feelings.
    In late March, I interviewed Mr. Wallace in his office in 
Jackson for almost 3 hours. Almost half of our interview was 
spent discussing the adverse information I had learned 
regarding Mr. Wallace's temperament.
    Consistent with this Committee's requirements for 
confidentiality, Mr. Wallace was given every opportunity to 
fully rebut or otherwise provide any information he wanted 
regarding the negative or adverse comments.
    Every adverse comment that is raised in the testimony 
presented to this Committee was discussed with Mr. Wallace 
during that interview. Given the nature of the issues raised, I 
prepared a written checklist. I went down that checklist during 
the interview to ensure that everything I would raise was 
covered with him. He responded to these issues as he chose to. 
There were issues he chose not to respond to.
    After these interviews I submitted my 83-page, single-
spaced report to the committee, along with some 800 pages of 
background materials. This was certainly longer than any brief 
I had ever submitted to any court.
    My investigation revealed, as stated earlier, that Mr. 
Wallace is a lawyer who possesses the highest professional 
competence. He possesses strong academic credentials and is in 
many respects a well-regarded and experienced trial and 
appellate lawyer.
    Mr. Wallace also possessed the highest of integrity. Even 
those who questioned his lack of appropriate temperament to 
serve as a judge all agreed that he possessed professional 
competence and integrity.
    The Committee rated Mr. Wallace ``Not Qualified'' because 
of the very serious issues raised regarding his judicial 
temperament. In evaluating temperament, the Committee consider 
a nominee's compassion, decisiveness, open-mindedness, 
courtesy, patience, freedom from bias, and commitment to equal 
justice. Over a third of the lawyers and judges that I spoke to 
raised issues regarding every element of temperament except 
decisiveness.
    Mr. Wallace was said not to have demonstrated a commitment 
to equal justice. Concerns were raised regarding the positions 
he had taken in a number of State and Federal cases. Lawyers 
who had litigated these cases with Mr. Wallace, some for over 
three decades, believe that Mr. Wallace had taken positions 
that were meritless and not supported by the law.
    He was said to have advanced his own personal views without 
regard for the ultimate resolution of the case. These issues 
were raised by a broad spectrum of lawyers and judges.
    Serious issues regarding Mr. Wallace's open-mindedness were 
raised. He was said to be rigid, hostile to, and not always 
tolerant of, the views of others. As an advocate, he was said 
not to listen to, or respect the positions of, others. He 
sometimes summarily dismissed the views of others. He could be 
argumentative without advancing the resolution of a case.
    Some questioned whether he could cease being an advocate 
and could become an effective judge. Given these concerns, many 
believe Mr. Wallace could not be a fair judge, lacked 
temperament, and so stated that.
    Judges and lawyers who had interacted with Mr. Wallace 
concluded that he lacked the freedom from bias necessary to be 
an effective judge. They believed he would not follow the law, 
or would ignore it if he disagreed with it.
    Senator Sessions. Ms. Askew, we do have a long panel and 
you are about 3 minutes over the time.
    Ms. Askew. All right. I will finish up.
    Senator Sessions. I have tried to be generous, but I do 
think we need to move along.
    Ms. Askew. Some concerns were raised regarding his lack of 
courtesy, patience, and compassion in dealing with lawyers and 
litigants. There were minority lawyers who had had personal 
interaction with Mr. Wallace who believed that he did not treat 
them with courtesy and respect.
    Given the nature of these concerns raised regarding Mr. 
Wallace's temperament and from such a broad cross-section of 
lawyers and judges in the legal community, after careful 
consideration the Committee unanimously concluded that Mr. 
Wallace was ``Not Qualified.''
    Thank you for your courtesy.
    [The prepared statement of Ms. Askew appears as a 
submission for the record.]
    Senator Sessions. Senator Cornyn has to go to another 
important meeting, so I would yield to him at this time. I am 
glad you came. Some of our colleagues are not here, but I am 
glad you are here and participating. I think you have a lot to 
offer on all these subjects, based on your experience and 
background. So, I would yield to you at this time.
    Senator Cornyn. Well, thank you, Mr. Chairman. I appreciate 
your letting me go out of order, and I apologize. But I did 
want to have a chance to have some discussion.
    Ms. Askew, it is good to see you.
    Ms. Askew. Good to see you, Senator.
    Senator Cornyn. We have known and worked together a long 
time through the State Bar of Texas.
    I have to confess, I am profoundly troubled by what I see 
here and I hope you can give me some comfort that it is not as 
bad as it looks.
    Let me start, perhaps, with this question, the same one 
that I asked Ms. Liebenberg. Did I pronounce that correctly?
    Ms. Liebenberg. Yes. Liebenberg.
    Senator Cornyn. Liebenberg. I beg your pardon. With a name 
like Cornyn, I am used to--
    Ms. Liebenberg. It is a hard one.
    Senator Cornyn. I am used to having my name butchered. I 
apologize.
    Ms. Liebenberg, can you explain to the Committee how you 
can be a person of the highest integrity with the kind of 
accolades used to describe Mr. Wallace, and at the same time be 
a person who ignores precedent, the rights of others, and all 
the other adverse comments that Ms. Askew and others collected 
during the course of their questions?
    Ms. Liebenberg. Certainly, Senator Cornyn. If you look at 
our Backgrounder, the criteria of integrity and temperament are 
defined differently. Integrity is the more narrow issue, which 
really looks at the industry, the diligence of the candidate, 
whereas judicial temperament looks at the issues that the 
evaluators have presented in their written testimony and the 
oral testimony today in terms of compassion, open-mindedness, 
and decisiveness.
    Senator Cornyn. So it looks like about two-thirds of the 
individuals interviewed, or conversely stated, about one-third 
of the ones interviewed, made negative comments pertaining to 
his judicial temperament. Is that correct, Ms. Askew?
    Ms. Askew. It was over a third of the individuals who were 
interviewed who raised those comments. But it was not just the 
number of comments raised. We look at the nature of the 
comments, the basis for the comments, the interaction that the 
nominee has had with the persons who raised those issues. I 
guess, as a judge, it would be a weight issue.
    So it is not just a matter of how many, but these were very 
serious allegations of temperament raised regarding Mr. Wallace 
that this Committee simply could not ignore.
    Senator Cornyn. Well, Ms. Askew, as an accomplished lawyer 
in your own right, familiar with the rules by which we try to 
get to the truth in a judicial context, are you not at least a 
little bit troubled by the fact that these are anonymous 
sources that are not provided to the nominee, when this man's 
career and reputation are on the line? How in the world can you 
justify using anonymous sources that cannot be confronted and 
there cannot be some opportunity to parse it and figure out, 
maybe there is some motive for providing that kind of critical 
comment. Maybe there is just a misunderstanding. Maybe someone 
does not really understand that it is a lawyer's responsibility 
to advocate vigorously on behalf of a client, even an unpopular 
client, in a losing cause.
    Ms. Askew. Certainly, Senator, I can respond to that. First 
of all, these are not anonymous. The Committee is made fully 
aware of the identity of every individual who made such a 
statement. They are presented with the circumstances under 
which any negative comments were made.
    These interviews were conducted just as we have conducted 
interviews as part of this peer review process for the entire 
time the ABA has been doing this process. This is the very 
process that we used in bringing you the recommendations that 
we did with respect to Justice Alito, with respect to Justice 
Roberts.
    Senator Cornyn. You say they are not anonymous because you 
knew who they were.
    Ms. Askew. And they were fully presented to the committee.
    Senator Cornyn. But they are anonymous with regard to the 
nominee. The nominee does not know who they are.
    Ms. Askew. Confidentiality is a very important part of this 
process. It always has been. It is explained to the nominee. 
When we talk to individuals who are providing this information 
to us, we obtain the kind of candid, frank information that we 
obtain from lawyers and judges in the community because we are 
for the confidentiality that they expect in this process.
    Senator Cornyn. But you agree with me it is not the same 
standard that would be considered fair and reliable in a court 
of law with regard to the evidence that could be considered.
    Ms. Askew. Of course, this is a peer review process. We 
make our recommendation to you. We certainly understand that 
ultimately the decision is the decision of the Senate and not 
this committee. This is a peer review. I could not analogize it 
to a court of a law. It is a 50-year old process that seeks to 
obtain information from the legal community about the 
reputation and the three factors that we vet related to a 
candidate.
    Senator Cornyn. Ms. Askew, just to get to some of the 
specifics with regard to Mr. Wallace's work for Senator--I 
guess, then Congressman--Trent Lott. Would you agree with me 
that a lawyer for a client should not be penalized for 
representing an unpopular client?
    Ms. Askew. I agree with that. Of course, our testimony does 
not in any way suggest that he is being penalized for advancing 
the cause of a client.
    Senator Cornyn. One of the cases that he has been 
criticized for involves Bob Jones University. Is that not 
right?
    Ms. Askew. That was not a part of the testimony that I 
presented, so I could not speak to that.
    Senator Cornyn. Then there was a question involving the 
Voting Rights Act because he represented the Republican Party 
of Mississippi in redistricting litigation. Do you find any 
fault with his representing the Republican Party of Mississippi 
in redistricting litigation?
    Ms. Askew. Under the ABA's ethical rules we fully 
understand that lawyers can zealously represent their clients. 
The lawyers and judges that I interviewed drew a very clear 
distinction between the zealous representation of a client and 
taking positions which they believe went beyond the point of 
zealous representation.
    The issues on temperament concern the fact that these very 
experienced lawyers and judges who had personal knowledge of 
these cases believed that he crossed the line from zealous 
advocacy and raised issues of temperament.
    Senator Cornyn. So these anonymous witnesses, or at least 
anonymous to Mr. Wallace, expressed an opinion and we just have 
to take their word for it because we do not know the basis for 
that opinion. You cannot reveal, under the ABA Committee rules, 
who they are even to this committee.
    You would agree with me, would you not, Ms. Askew, that a 
lawyer has a professional responsibility to zealously advocate 
for their client and, within the rules of the American Bar 
Association, can properly argue for an extension, modification, 
or a reversal of existing law? Is that not right?
    Ms. Askew. Absolutely, under the appropriate circumstances.
    Senator Cornyn. Let me, finally, ask about the concerns 
that have been raised. I wish Mr Tober was here. I understand 
he is no longer the Chair of the Standing Committee. But Ms. 
Liebenberg, one more time.
    Ms. Liebenberg. It is German: Liebenberg. Love Mountain.
    Senator Cornyn. Can you explain to me what the 
circumstances are under which a member of the Standing 
Committee would recuse themselves for a conflict of interest or 
an appearance of partiality?
    Ms. Liebenberg. As set forth in our Backgrounder, we do set 
forth a recusal standard that sets forth that if there is any 
appearance of impartiality or if the participation would be 
incompatible with the purposes and functions of the committee, 
then the member of the Committee should recuse him or herself.
    In the case of Mr. Tober, I think it is important to 
emphasize that Mr. Tober did not participate in any way in the 
rating. The chair does not participate unless there is a tie 
vote, and of course there was not a tie vote, the vote here was 
unanimous.
    In addition, Mr. Tober had no influence over any of the 
members of the committee. Each of the 14 members, as I said, 
represent different judicial districts. They have unique 
backgrounds. They exercise and take very seriously their 
obligation to evaluate all the materials and to vote 
independently, which is what they did. Mr. Tober, since he did 
not participate in either the evaluation or the rating, did not 
have to recuse himself under our standards as they existed.
    Senator Cornyn. I understand, in 1989 while Mr. Wallace was 
Chairman of the Board of Legal Services Corporation, he was 
invited to appear in that capacity on a panel of a meeting of 
the ABA in Honolulu where the role of the Federal Government 
and providing legal services to the poor was one topic of 
discussion.
    There erupted quite a disagreement, apparently, among the 
panel members. There is a letter, Mr. Chairman, from Mr. Fred 
M. Bush, Jr. of the Phelps Dunbar firm in Tupelo, Mississippi 
that describes what I am about to talk about, which I would ask 
to be made part of the record by unanimous consent.
    Senator Sessions. It will be made a part of the record.
    Senator Cornyn. Mr. Bush says that, ``During this debate 
the ABA panelists were so vicious and personal in their attack 
on Mike, that many of us were offended and expressed our 
displeasure at the time.
    One of the members of that panel is now the president of 
the American Bar Association,'' and that is Mr. Greco, ``and I 
believe another is on the Standing Committee.'' That letter 
will be made part of record and is dated July 5, 2006.
    Similarly, there is another letter from the Bar Leaders for 
the Preservation of Legal Services to the poor dated September 
15, 1999. This is a letter signed by Gail Kinney, Coordinator. 
Mr. Chairman, I would ask that this be made part of the record 
by unanimous consent as well.
    Senator Sessions. Without objection.
    Senator Cornyn. This is a letter to Mr. Wallace. It says, 
``I understand you, or perhaps some of your Mississippi 
colleagues, may have come away from the presentation feeling 
insulted by a remark that Mike Greco made about your being a 
`gentlemen from Mississippi' or something like that during the 
spirited opposition to the activities of the current Legal 
Services Board.'' That does not sound like too much of a nasty 
exchange there.
    I guess my point is, though, that Mr. Greco, and to some 
extent Mr. Tober, were on opposite sides in an ongoing and very 
public and heated debate about the proper role of the Legal 
Services Corporation during Mr. Wallace's tenure there. Is that 
not right?
    Ms. Liebenberg. I do not know the complete details of the 
disagreement. I will just reemphasize that neither Mr. Tober, 
nor Mr. Greco participated in the evaluation or the rating of 
Mr. Wallace.
    I would just add one additional factor, is that just 
recently, as Chair of the committee, we conducted a new 
supplemental evaluation of Mr. Wallace. Ms. Bresnahan will be 
here to testify about that evaluation.
    Senator Cornyn. That was a supplemental evaluation, was it 
not?
    Ms. Liebenberg. Yes, it was.
    Senator Cornyn. It did not go back and revisit the matters 
previously investigated or for possible taint, or bias.
    Ms. Liebenberg. If I can just start, then Ms. Bresnahan 
will amplify. In general, what our procedures call for is that 
in a supplemental evaluation the investigator looks at any new 
information that might have developed between the last rating 
and evaluation and brings the evaluation forward.
    Under our rules, however, an investigator can look at 
information prior to the time before the nomination to make 
sure that there has been a thorough and complete evaluation, 
and to make sure that the evaluation--and as I asked Mr. 
Hopkins and Ms. Bresnahan to make sure--was even-handed, 
complete and balanced.
    As you will hear from Ms. Bresnahan, that is exactly what 
they did do, given the time. It was a very expedited basis that 
we had in which to conduct the supplemental evaluation.
    Senator Sessions. Let us get a couple of things straight. 
First, I think obviously the writer of the letter from Legal 
Services that you offered felt that the tone and tenor of 
suggesting he was someone from Mississippi, probably--being 
from Alabama--was dismissive and perceived as not courteous, 
but the point of which is, that letter indicated that they 
believed he had been mistreated or had been disrespected in 
some way.
    Second, who was participating in that panel where that 
occurred? I want to get this straight. The president of the 
American Bar Association at the time the Committee was 
appointed that evaluated Mr. Wallace?
    Senator Cornyn. This was the immediate past president of 
the American Bar Association, Michael Greco, in his capacity as 
co-founder of Bar Leaders for the Preservation of Legal 
Services to the Poor. This was in 1989.
    Senator Sessions. And was the lady member of that Committee 
that was participating in that panel, did she participate in 
this evaluation? Is that correct, Ms. Liebenberg?
    Senator Cornyn. Mr. Tober was the chair of the Standing 
Committee, immediate past, that oversaw the evaluation process 
for Mr. Wallace. If I can just try to clarify my point.
    Apparently, in opposing a proposed regulation to require 
that the board receiving Legal Services Corporation funds have 
bipartisan membership, as does the LSC itself, Mr. Tober was 
reported to flamboyantly accuse Wallace of attempting to 
fashion a political bias litmus test and of having a hidden 
agenda, and he vowed to disobey the regulation if it became 
law. Have any of you heard about that exchange?
    Ms. Liebenberg. I would just, again, add that Mr. Tober did 
not participate in the evaluation. Ms. Askew is here. She can--
    Senator Sessions. Mr. Tober was Chairman of the Committee 
that oversees these evaluations. Is that not correct?
    Ms. Liebenberg. He was the chair of the committee, but he 
does not oversee the evaluations. Ms. Askew, as the 
investigator, and then Mr. Hayward as a second investigator, 
were charged with the responsibility of conducting the 
evaluation.
    Senator Sessions. Who appoints these committees?
    Ms. Liebenberg. The individuals appointed to the ABA 
Standing Committee are appointed by the ABA president.
    Senator Sessions. So that would be Mr. Greco. So Mr. Greco 
would participate in this.
    Ms. Liebenberg. Yes. As only a third of the individuals. 
Right.
    Senator Sessions. We do not need to go into it too much 
further, I do not think. I would just say to you, I remember 
the bitterness of this fight. I remember what I believe was a 
very wrong position of the American Bar Association in opposing 
reform of the Legal Services Corporation. They opposed it 
aggressively, hostilely, and openly, and lost.
    Now we have a man who participated in that reform, 
consistent with what the President of the United States desired 
and the Congress has ratified as a reorganization method for 
Legal Services Corporation, and they are now judging him.
    If you are participating in a trial, Ms. Liebenberg, and 
you were being adjudicated by a judge, do you think a Motion to 
Recuse would be appropriate under these circumstances?
    Ms. Liebenberg. In these circumstances, where Mr. Tober 
would not be acting as a judge, no, I do not think it would be 
appropriate.
    Senator Sessions. He was in a position to vote if there 
were a tie, was he not?
    Ms. Liebenberg. If there had been a tie. But the vote was 
unanimous.
    Senator Sessions. But he was in a position. So you are 
saying he can be on a panel and have the opportunity to cast a 
vote, and you do not think that is improper? Now, remember, you 
are under oath.
    Ms. Liebenberg. I understand that.
    Senator Sessions. And my question was, if you were being 
tried, would you accept such a position?
    Ms. Liebenberg. If I was tried--
    Senator Sessions. Being tried for some offense.
    Ms. Liebenberg. If I was being tried for some offense, 
there might be an issue with respect to an appearance of 
impropriety.
    Senator Sessions. I would say there would be. Well spoken.
    Ms. Liebenberg. But this is not an adjudicatory process.
    Senator Sessions. I know.
    Ms. Liebenberg. This is not a process where Mr. Tober had 
any role whatsoever in the evaluation or in the vote. This has 
been a very thorough and comprehensive evaluation. As I said, 
over 120 different judges and lawyers have been interviewed. 
Mr. Wallace has been interviewed for over 12 years. There have 
been 21 separate--
    Senator Sessions. Interviewing him does not make any 
difference if the jury is stacked. That is the question we have 
here.
    Ms. Liebenberg. Well, there have been 21 separate--
    Senator Sessions. Let me ask Senator Cornyn. He wants to 
ask a question, and I will let you respond.
    Ms. Liebenberg. All right.
    Senator Cornyn. Actually, I am going to have to leave. But 
there is a letter, Mr. Chairman, that was written by Senator 
Specter to Michael S. Greco, president of the American Bar 
Association, and Steven L. Tober, then-chairman of the Standing 
Committee on the Federal Judiciary. This is dated August 7, 
2006. I ask unanimous consent that it be made part of the 
record.
    Senator Sessions. Without objection.
    Senator Cornyn. Let me just ask to highlight just a couple 
of paragraphs, and the whole letter will be part of the record.
    Senator Specter said, ``I have had the opportunity to 
review the testimony with regard to both nominees.'' He is 
talking about Judge Bryant and Mr. Wallace. He said, ``I am 
troubled by your submission. Your testimony raises serious 
charges, but only supports those allegations with anonymous 
quotations presented without context.
    Testimony of this sort is impossible to verify or otherwise 
further investigate. Worse, it can give some the unfortunate 
impression of a smear campaign conducted against the nominees. 
The nominees were publicly branded ``Not Qualified'', and in 
your testimony, worse, do not have the opportunity to confront 
their accusers.''
    The letter goes on. But Senator Specter asked specifically 
that the American Bar Association promptly take the step of 
immediately revoking its ``Not Qualified'' rating of Mr. 
Wallace and begin a new review process.
    Have you had a chance to look at the letter and make a 
decision one way or the other?
    Ms. Liebenberg. We did have an opportunity to look at the 
letter, and obviously took Senator Specter's concerns very 
seriously. As a result, as I think has been mentioned by the 
Chairman, we retained Mr. Olson, who did help us respond to the 
concerns raised by the Chairman. As a result of that, we have 
clarified certain of our procedures.
    Senator Cornyn. And you have changed your procedures?
    Ms. Liebenberg. No. I said we clarified our procedures to 
make them--
    Senator Cornyn. You clarified what you did, not clarified 
your procedures for prospective application.
    Ms. Liebenberg. Both. We have clarified our procedures. As 
the ABA Committee has done over the years, we continuously 
refine and reexamine our procedures. In this instance--
    Senator Cornyn. So you changed your procedures as a result 
of the concerns that were raised in this letter?
    Ms. Liebenberg. I do not believe I said ``changed''. I am 
sorry, Senator Cornyn. I said we have clarified those 
procedures to make sure that our procedures are known and 
understood to the nominees and to the public.
    Senator Cornyn. But you turned Senator Specter down.
    Ms. Liebenberg. We conducted a new evaluation.
    Senator Cornyn. You did not revoke the ``Not Qualified'' 
finding. Correct?
    Ms. Liebenberg. We did not revoke. It has been superseded 
by the new rating that was done by a new committee, where 7 of 
the 14 members were appointed by a new ABA president, and as a 
result of the careful consideration of those materials, they 
have voted and they have voted unanimously that Mr. Wallace is 
``Not Qualified''.
    Senator Cornyn. Thank you, Mr. Chairman.
    Senator Sessions. Thank you.
    I guess we need to proceed along. Who is next?
    Ms. Liebenberg. Ms. Bresnahan.
    Senator Sessions. Ms. Bresnahan. All right.

     STATEMENT OF PAMELA A. BRESNAHAN, FORMER D.C. CIRCUIT 
 REPRESENTATIVE, 2002-2005, AMERICAN BAR ASSOCIATION, STANDING 
     COMMITTEE ON THE FEDERAL JUDICIARY, WASHINGTON, D.C.; 
    ACCOMPANIED BY C. TIMOTHY HOPKINS, FORMER NINTH CIRCUIT 
REPRESENTATIVE, AMERICAN BAR ASSOCIATION, STANDING COMMITTEE ON 
           THE FEDERAL JUDICIARY, IDAHO FALLS, IDAHO

    Ms. Bresnahan. Senator Sessions, at this late hour I am 
going to make my oral testimony part of the record.
    [The prepared statement of Ms. Bresnahan appears as a 
submission for the record.]
    Ms. Bresnahan. As you know, I am a lawyer that practices 
here in the District of Columbia, and I was a DC Circuit 
representative from 2002 to 2005, and I conducted a number of 
these investigations, including Chief Justice Roberts's 
investigation.
    Senator Sessions. Who asked you to do the supplemental 
evaluation?
    Ms. Bresnahan. Ms. Liebenberg. It was after Bobbi 
Liebenberg became the new chair in August, when the new 
president of the ABA, Karen Mathis, selected her to be the 
chair. It was only a 1-year appointment for Mr. Tober.
    Senator Sessions. All right. And you did what review?
    Ms. Bresnahan. I did a supplemental evaluation. I reviewed 
Ms. Askew's report, as did Mr. Hopkins, and we interviewed 11 
new people. I reviewed the Personal Data Questionnaire and went 
through and chose to re-interview a cross-section of people to 
see if their opinions had changed. It was a way of cross-
checking Ms. Askew's report and updating the report.
    Then Mr. Hopkins and I interviewed Mr. Wallace last Monday 
morning for 2 hours and raised with him adverse comments which 
had been made to us, giving as much context as possible, 
consistent with preserving the interviewee's request for 
confidentiality.
    I think, given Senator Cornyn's remarks, it is important to 
note that a number of these interviewees had great concerns 
about their remarks and confidentiality. As you know, we think 
through confidentiality we get a candid assessment of the 
candidate. Obviously this investigation was extraordinarily 
difficult.
    There were laudatory comments, particularly regarding Mr. 
Wallace's integrity and competence. Although there were 
positive comments about his temperament, there were also 
serious issues raised about Mr. Wallace's temperament in the 
supplemental evaluation.
    The comments centered around recent concerns in the 
supplemental evaluation about Mr. Wallace's inability to 
listen, his lack of courtesy and patience, his freedom from 
bias, and his open-mindedness. We presented Mr. Wallace with 
these comments and gave him the opportunity to rebut those 
comments.
    We had an extraordinarily detailed discussion about each 
component of the temperament criteria. Interviewees expressed 
that they thought Mr. Wallace was a terrific, effective, and 
zealous advocate, but many did not believe that he, because of 
his personality and background, would make a good judge.
    Senator Sessions. Many? What can you say about ``many'' ? 
Would that be 11 people?
    Ms. Bresnahan. I can say, while preserving the concerns 
about confidentiality, that lawyers and judges, conservatively 
speaking, 40 percent, and another 20 or so percent expressed 
concern. So the concerns were raised in a full spectrum: some 
said they thought he could overcome his bias, some said they 
were not sure, some said they did not think so.
    Senator Sessions. All right.
    Ms. Bresnahan. I thought you were going to ask me a 
question. I am sorry. It is good that you are not. All right.
    Mr. Hopkins and I joined in Ms. Askew's and Mr. Hayward's 
recommendation to the Standing Committee of ``Not Qualified'' 
with respect to this nominee. Thank you very much.
    Senator Sessions. Mr. Hayward? I would just ask you, 
briefly, you were asked to do the second review by Mr. Tober, 
were you not?
    Mr. Hayward. Yes, sir.
    Senator Sessions. And when a Committee and the members do 
their reports, do they send them to Mr. Tober? Where are they 
sent?
    Mr. Hayward. They are sent to the chair. In my case, it 
would have been sent to Mr. Tober.
    Senator Sessions. And Mr. Greco was president of the Bar 
and appointed at least a certain number of the members of the 
committee. Is that correct?
    Mr. Hayward. Yes. Some quick background, Senator. I chaired 
this committee, probably from 2003 to 2005. I served two 
presidents of the Bar Association. Each had an opportunity to 
appoint approximately a third of the members.
    That was certainly the case in Mr. Greco's case, and is 
certainly now the case with Ms. Mathis with the appointment of 
Ms. Liebenberg. Usually, the chair serves for 1 year. I was, I 
guess, crazy enough to take it for 2 years.
    Senator Sessions. It is a tough job, I have no doubt.
    Mr. Hayward. But I think, so you understand the process, 
when we do the report, Ms. Askew does the report, I do a 
supplemental, and it goes to the chair. The chair then releases 
it to our entire Committee for their review. The chair only 
looks at it to make sure that it is complete, in the judgment 
of the chair, that it has a significant number of interviews of 
a broad spectrum of individuals that know the nominee.
    Senator Sessions. I am sure you were aware, were you not, 
that Mr. Tober had had a run-in with Mr. Wallace.
    Mr. Hayward. I did. Quite frankly, Senator--
    Senator Sessions. Are you aware that other members of the 
Committee probably were aware that the chair of the Committee 
had had a personal run-in with the nominee, Mr. Wallace?
    Mr. Hayward. I said I was aware. If you read the record, 
you are aware. However, I chose to disregard, as a supplemental 
reviewer. I gave Mr. Wallace the due respect, that he was a 
trial lawyer and an advocate representing a client. I was 
looking at it personally from my peer review. I confirmed that 
Ms. Askew had it right in terms of integrity, in terms of 
professional competency. You have heard this today.
    I also confirmed, through my own interviews and reviews, 
and personally interviewing Mr. Wallace myself, that the 
concern that was raised by many lawyers and judges--that not 
every great advocate can make the transition to be a good 
judge--was something that we had to raise.
    Senator Sessions. Well, I would just share this little bit 
of personal experience with you. I had some sympathy for the 
ABA over the years as a result of it, but I have understood the 
difficulties involved.
    Having come before this very Committee for a judgeship, the 
ABA had rated me ``Qualified'', but there was a very aggressive 
ideological, political minority that wanted to have me rated 
``Unqualified''.
    So an additional review was done by some senior lawyer from 
Ohio, and they found I was still ``Qualified''. But in the 
course of the hearings, on the eve of a hearing in this body, 
it leaked that two people from the Department of Justice had 
said confidentially to the ABA that I had blocked a civil 
rights investigation.
    They asked me about it and I fumbled around. I did not know 
what they were talking about. But I did not answer very clearly 
because I assumed the two lawyers from the Department of 
Justice knew what they were talking about, they must have had 
something in their minds.
    So, they never intended this to become public. They 
intended and expected that the information that they gave would 
go to the ABA, and to the ABA alone. That, I assume, would 
impact their decision about whether or not I was qualified.
    Well, when it blew up, they had to answer. They had a 
hearing to put them under oath and they fumbled around, and 
confusedly tried to answer what case it was. Eventually the 
next day they came forward and said, oh, they made a mistake. 
It was not U.S. Attorney Sessions, it was his predecessor in 
the office. He was not the one.
    Now, that could have been a mistake that they made in 
confusing me with my predecessor. It would be an opportunity 
for someone with bad motive, however, if you understand what I 
mean, to say something they do not have to be held accountable 
for in hopes that they might impact a decision of the Bar 
Association which can be important in the deliberative process 
of the U.S. Congress as they go about deciding.
    So I just wanted to tell you, you are litigators. You have 
challenged courts, and you have challenged judges, and you have 
filed to recuse them, and you insist that your client get 
absolute fairness. You would challenge anyone, I suspect. I 
hope you do, because you are zealous advocates for your client, 
as I think Mr. Wallace is.
    But I would just say this: you are entitled to be 
challenged, too. You are not above reproach just because you 
are from a big law firm and have been appointed to the ABA. 
Just like judges are not above reproach, prosecutors are not 
above reproach and lawyers are not above reproach. So I am 
coming at this from that perspective. I just wanted to share 
with you those thoughts.
    Let me ask you this. Has Mr. Wallace ever been found guilty 
of contempt? Has he been subject to discipline for misconduct 
in court, anything of that kind?
    Ms. Askew. Because I interviewed the lawyers and judges who 
raised some of the comments regarding the over-zealous 
representations on some points, I specifically asked that 
question. I asked about Rule 11 in Federal court. I cannot 
remember the number of the comparable Mississippi State court.
    I can remember saying, there are rules that take care of 
this. What these lawyers and judges came back to was, again, it 
was an issue of temperament. We, as lawyers, come to 
conclusions about our advocates based on how they interact in 
the court.
    Senator Sessions. Well, I know that. But that is very 
subjective here.
    Let me just tell you what I am getting around to, to get 
perspective. So I would say to you that I think the ABA process 
can be valuable. I think it gives us insight into the nominees 
and can be valuable, and should be evaluated by this body.
    But I am troubled about this nominee. I mean, this is a 
sterling nominee. Ms. Askew, you said, ``Mr. Wallace possesses 
the integrity to serve on the bench. His integrity was 
described by many as `impeccable,' `outstanding', `the 
highest', `absolute', and `solid' ''.
    Mr. Hayward, you said, ``Mr. Wallace possesses the 
integrity to serve on the bench. He has the highest 
professional competence as a highly skilled and experienced 
trial and appellate lawyer.'' I would say he has argued cases 
at the Supreme Court level. He has clerked for the Chief 
Justice of the U.S. Supreme Court. He was at the Law Review at 
the University of Virginia. He is really one of the top lawyers 
in the State, obviously. Now we have this thing about 
temperament, which is vague.
    Now, Justice Reuben Anderson, a pioneering civil rights 
attorney, the first African-American State Supreme Court 
Justice in Mississippi and current law partner of Mr. Wallace, 
stated, in nominating Mr. Wallace to the Fifth Circuit, ``The 
President could not have picked a finer person or better 
lawyer.'' Justice Anderson said, ``In both legal skill and 
character, Mr. Wallace is exactly the kind of person any one of 
us would want judging our cases.'' Did you all dismiss that? 
Did that not have any impact?
    Ms. Bresnahan. Well, of course it has impact. I mean, what 
we are talking about is to have the ability to get a candid 
assessment and balance the credibility of the person you are 
speaking to. I mean, throughout these investigations some 
people you give greater weight than others. Some people have 
more contact with others.
    When you do 120-some odd interviews, you have the full 
range of lawyers and judges. We believed that there were 
serious enough concerns, and detailed concerns, some of which 
you could not disclose precisely what the case was because you 
would reveal who the lawyer or the judge was.
    Senator Sessions. Let me ask you this. Ms. Askew, we have 
seen the redistricting cases and they are very, very intense.
    Ms. Askew. They are very intense. Yes.
    Senator Sessions. Texas is still recovering from their 
battle.
    Ms. Askew. We are in the middle of one.
    Senator Sessions. People make claims about the other side 
that are not justified, on both sides, probably. But it seems 
to me that his aggressive representation of a client that might 
be unpopular with this panel, but not unpopular with me, or the 
Republican Party--it is dubious that that turns out to be the 
pivotal case, it seems, and that litigation turns out to be 
decisive here. If lawyers on the other side were not happy and 
became intense over the years, perhaps their objectivity is not 
that trustworthy.
    Ms. Askew. Just so it is clear, Mr. Sessions, these 
comments did not just come from the lawyers who were involved 
in the civil rights litigation or the Voting Rights Act cases. 
These comments came from lawyers who had been involved in 
litigation of various types with Mr. Wallace. I talked with 
lawyers who had been involved in personal injury, product 
liability, commercial cases.
    What they were getting to here, we keep talking about Mr. 
Wallace's professional competence, his brilliance, his 
integrity. I was very taken by the fact that the people that I 
talked with talked about the fairness of a judge. When we talk 
about the Federal courts, brilliant lawyers do not always make 
fair judges. That was the point that I think this temperament 
issues were trying to raise.
    Senator Sessions. Well, I notice you indicated that about a 
third of the people made negative comments.
    Ms. Askew. That is correct.
    Senator Sessions. So presumably about two-thirds did not.
    Ms. Askew. Some did, some did not.
    Senator Sessions. About two-thirds apparently did not or 
you would have said there were more. Mr. Swasey, immediate past 
president of the Mississippi Bar, stated, ``I believe, as do my 
fellow former Bar presidents, that Mike possesses a 
demonstrated judicial temperament and will judge fairly without 
favor the matters that come before him.''
    He goes on to say Mike Wallace ``is exceedingly well 
qualified by training, talent, experience to occupy a seat on 
this important appellate court.''
    Alec Austin, former president of the Mississippi Bar and 
Fellow of the American College of Trial Lawyers, plaintiff 
lawyers, stated, ``I have found Mike to be extraordinarily 
professional and civil in all proceedings.
    He is an exemplary lawyer and an American citizen who has 
involved himself deeply in the issues of his day.'' Mr. Austin 
also said Mr. Wallace ``has earned the highest reputation among 
his peers for legal ability and integrity.''
    Mr. Hopkins, you have not had a chance to speak. Would that 
give you any pause if the Trial Lawyers Association and the 
president of the Bar support him?
    Mr. Hopkins. Senator, thank you for the opportunity to say 
a word. Let me say just at the outset that I join in the 
comments that you have heard from Kim Askew and Pam Bresnahan.
    Senator Sessions. Do you know either of those two guys, Mr. 
Swasey or Mr. Austin?
    Mr. Hopkins. Pardon me?
    Senator Sessions. Do you know Mr. Swasey, the Bar 
president, and Mr. Austin, the Bar president? Do you know those 
persons personally?
    Mr. Hopkins. I do not know them personally. Senator, just 
let me say, if I may, that I join in the comments that you have 
heard from my colleagues here. It is no question that Michael 
Wallace is a well-qualified lawyer, and particularly well-
qualified trial lawyer and appellate lawyer. He belongs to some 
organizations I belong to.
    And by the way, Mr. Sessions, I belong to a 12-man firm in 
a small Idaho community which is perhaps not typical of the 
ABA, or necessarily of this panel. I have represented, as well, 
the Republican Party in that State.
    So there is a cross-section of those of us who are here on 
behalf of our professional association to share with this 
committee, in all of our greatest professional integrity, the 
opinion of those people with whom we have talked who are sworn 
to those same principles that you, Senator, and we, are sworn 
to uphold.
    Senator Sessions. Mr. Hopkins, let me ask you, in the 
course of intense litigation, I have seen lawyers throw books. 
I have seen them do a lot of dramatic things.
    When you have a person with no record of discipline, no 
record of complaints for unprofessionalism and he has all these 
accolades for the core abilities that I think you would want in 
a judge, I mean, it is hard for me to see how you can say a 
person has so much integrity if you do not think they are 
compassionate and just.
    Did you know that he had been four times to Honduras, in 
partnership with an African-American church, to serve the poor?
    Mr. Hopkins. I was impressed with that, I must say.
    Senator Sessions. Did you know his children, in 
Mississippi, attended integrated schools? That is not always 
done in Mississippi, trust me. A lot of people with money do 
not do that.
    Mr. Hopkins. We would be impressed with that. But, Senator, 
that is not what we were asked to investigate here. We were 
asked to inquire of his peers, in the State of Mississippi and 
in instances where he has been in litigation with persons 
outside Mississippi, what about his qualifications to be a 
judge.
    There is no doubt about his qualification as a fine lawyer. 
All those things, all those accolades you make reference to are 
to his abilities as a fine trial and appellate lawyer. There is 
no question about that.
    The question is whether he can make that transition, as Mr. 
Hayward said to you, from being an outstanding trial lawyer to 
being a good, open-minded judge. That is where the question of 
his peers--
    Senator Sessions. And that is your evaluation. We will have 
to, I guess, evaluate whether or not the long-time head-
knocking between the ABA leadership and Mr. Wallace over the 
Legal Services Corporation may have infected your evaluation.
    Mr. Hopkins. We hope it did not. It surely did not affect 
mine.
    Senator Sessions. With regard to other comments, Mr. Scott 
Welch, one of eight former presidents of the Bar Association, 
said about him that the group that wrote shared no political 
party, judicial philosophy, or religious affiliation.
    He writes, ``My personal and professional experience with 
Mike Wallace convinces me, and I believe my fellow former Bar 
presidents, that Mike possesses demonstrated judicial 
temperament and that he would judge fairly and without favor 
the matters that come before him.''
    We do not have a real fair trial here. This is not a 
legitimate forum in the tradition of which each of you are used 
to operating. So I will give you all a chance briefly, then I 
would like to ask about Judge Bryant. We need to talk about 
that. I know the Wallace matter is most heated, but her 
nomination to a district judgeship is also important.
    So would any of you like to respond to some of my comments?
    Ms. Liebenberg. If I could, Senator Sessions. I would like 
to just emphasize again that the linchpin of our process is 
confidentiality. There have been some remarks about anonymous 
quotations. I think, again, it is important to understand that 
when we ask someone their candid assessment of a nominee, we 
ask them whether their name can be disclosed in our report, 
which is only distributed to members of the committee. If 
individuals say that they will not let us use their name, we do 
not consider their comments and they are not included in our 
report.
    And while confidentiality is the linchpin of our evaluation 
process, we are very, very responsible in terms of making sure 
that we are fair to the nominee with respect to adverse 
comments. That is why we provide as much specificity and 
content as possible without compromising that confidentiality.
    And with respect to the supplemental evaluation, we had one 
interviewee who did allow us to disclose his identity and his 
comments, and those were discussed with Mr. Wallace.
    But in general, quite simply, people would not provide us 
with the candid and sensitive assessments that they give us if 
they knew that those comments would be disclosed and they would 
then have to later appear before the nominee, if he or she was 
confirmed, or have to serve with them on the bench.
    Senator Sessions. Were there any specific instances cited 
in court that can be verified by somebody or court record where 
Mr. Wallace misbehaved? I am sure somebody could find one in my 
record. Mr. Olson back there. I know he never said anything in 
court that would cause a disturbance. But give me an example of 
something in court that can be verified.
    Ms. Liebenberg. Well, I think with respect to judicial 
temperament, that how one conducts themselves in a meeting, in 
a deposition, or in court may not necessarily be found in the 
hard pages of a transcript. But if someone is arrogant, abrupt, 
or dismissive, that may leave an impression on the persons that 
interacted.
    The concerns with respect to judicial temperament, as has 
been said by my colleagues, were pervasive. They were not 
isolated in a particular point of time. They were not isolated.
    Senator Sessions. Well, you said ``pervasive''. She said 
less than about a third had some negative comments, so it did 
not appear that ``pervasive'' is the right word.
    Ms. Liebenberg. Well, I think the types of comments that we 
have received, from 1992 through 2006, have been similar with 
respect to issues and concerns about Mr. Wallace's temperament.
    Senator Sessions. Well, I will just say this. I have not 
been cited any deposition actions that would indicate 
impropriety. I have not been cited any action in the intensity 
of a courtroom that has shown that.
    I have not even been cited any specific examples in private 
behavior--just a concern that is awfully vague, it seems to me, 
not attached to any specific acts. And I suspect if you looked 
at those lawyers you might find that there were differences in 
some of these high-profile cases.
    So, I am not sure Mr. Wallace got a fair shake. But your 
opinion is received. It will be evaluated, and we will not 
treat it lightly. I think we probably lost some of our 
witnesses in the next panel who have airplanes to catch.
    Ms. Liebenberg. Mr. Chairman, can we be excused if we are 
not involved?
    Senator Sessions. Yes. Each of you are excused, if you 
would like. You are free to stay if you would like.
    Let us do this next panel, if any of them are still here.
    Ms. Liebenberg. Thank you very much for your time.
    Senator Sessions. Oh. Would any of you like to comment on 
Judge Bryant and her nomination and the report?

     STATEMENT OF DOREEN D. DODSON, FORMER EIGHTH CIRCUIT 
 REPRESENTATIVE, 2001-2004, AMERICAN BAR ASSOCIATION' STANDING 
    COMMITTEE ON THE FEDERAL JUDICIARY, ST. LOUIS, MISSOURI

    Ms. Dodson. Yes, Senator. Thank you very much. My name is 
Doreen Dodson. I have practiced law in St. Louis, Missouri for 
over 30 years, and I was the committee's Eighth Circuit 
representative from August 2001 to August 2004.
    During that time I conducted investigations in the Eighth 
and other Circuits, and participated in the evaluation of 
approximately 230 nominees to the Federal courts.
    Our Committee has concluded that Judge Bryant is ``Not 
Qualified'' for appointment to the court. This conclusion was 
reached after a careful review of the written submissions of 
Judge Bryant, my personal interview with her, and confidential 
interviews of 65 judges and lawyers in Connecticut.
    I solicited information from diverse members of the legal 
community, including, for example, lawyers in private and 
government service, Legal Service lawyers, public defenders, 
prosecutors, and representatives of professional organizations. 
I also made a particular effort to locate those who had trials 
or other significant interaction with her in her legal 
capacity.
    In addition, I spent approximately two and a half hours 
with Judge Bryant and, during the course of that meeting, I do 
want you to know that I raised all the concerns that had been 
identified during my investigation, and Judge Bryant was given 
a full opportunity to rebut or provide context for these 
concerns, and to provide any additional information she wished 
to offer. I wanted to make that point, especially because she 
noted that she did not know of the reasons, and was told 
``until her hearing''.
    Most of those interviewed expressed concerns about the 
nominee's professional competence. According to the background, 
professional competence encompasses such qualities as 
intellectual capacity, judgment, writing, and analytical 
ability, knowledge of the law, and breadth of professional 
experience.
    Judge Bryant was appointed to the Connecticut Superior 
Court in September, 1998. Prior to her appointment, her career 
was principally that of a bond attorney.
    Her only experience in a courtroom consisted of handling 
three paternity cases as an associate, second-chairing as local 
counsel at a Boston firm in a contract case, and serving as the 
Chapter 13 trustee for two years. Substantial courtroom and 
trial experience is particularly important for nominees to the 
District Court, a trial court.
    The Backgrounder states that the lack of experience can be 
compensated for by the presence of other experience similar to 
trial work, and in Judge Bryant's case that other experience 
arguably would have been her 8 years spent on the State trial 
bench. However, during those years she spent them principally 
in an administrative capacity.
    In those roles, Judge Bryant chiefly has heard and ruled 
upon preliminary motions, held sentencings, presided over a 
drug court, and handled scheduling matters. She has had little 
opportunity to preside over jury trials. In the PDQ that she 
completed, she noted, for example, that she had no significant 
litigation experience.
    Many of those interviews commented that most of the cases 
she did handle were relatively simple cases, requiring little 
skill, that she did little research, seemed overwhelmed by 
complex issues, and that her opinions were confusing or poorly 
done.
    Judge Bryant provided us with 10 opinions. She has not had 
an opportunity to write a large volume of opinions and she has 
not done other legal writing. In general, most of the submitted 
opinions demonstrate adequate to good legal analysis in writing 
in very standard cases.
    However, one of the 10 opinions which did involve complex 
issues was very confusing. Another was written by the nominee 
only after she was ordered to do so by the appellate court, and 
then after a subsequent Motion to Compel was filed by one of 
the parties.
    Federal judges today face massive criminal dockets and 
Judge Bryant has little experience in criminal matters. Federal 
judges also face complicated and challenging legal and factual 
issues. A district court judge must make decisions in the 
courtroom during trial that require a solid grounding in 
substantive and procedural law and experience with juries.
    As reported by the interviewees, the nominee, even after 8 
years on the court, has little experience to prepare her for 
this task due to her assignments as a presiding or 
administrative judge whose principal role has been to move 
cases. In addition, a majority of those interviewed raised 
concerns about her judicial temperament.
    Most interviewees reported they found Judge Bryant formal, 
but pleasant and cordial outside the courtroom. But when 
engaged in court business, they said she was rigid, unbending, 
and unreasonable in her adherence to scheduling and other trial 
issues, was impatient with lawyers, and was sometimes rude and 
inconsiderate to lawyers and litigants.
    I understand and took into account that trial lawyers like 
to control their docket and may not be fond of a judge who does 
not grant continuances. But our Committee could not discount 
the number of temperament complaints, ranging from arrogance, 
to rushing to judgment, and being intractable in some 
instances, or being unable to make up her mind in others.
    It was particularly significant to the Committee that the 
temperament concerns were expressed about her consistently from 
her early days on the bench up until the present day.
    A substantial majority of our committee, after reviewing my 
report on the nominee, and based upon the number of complaints, 
both of which are consistent through her years on the bench, 
found the nominee ``Not Qualified''.
    Thank you, Senator, for inviting us to share our views with 
you.
    [The prepared statement of Ms. Dodson appears as a 
submission for the record.]
    Senator Sessions. Thank you very much, Ms. Dodson. I think 
those are valuable insights and I think it is a helpful role. I 
know it is not pleasant to have to reach that decision, but I 
assume you try to do that in an objective way. Some disagree. 
Obviously the Senators from the State disagree, and the 
President disagreed. But we value that report and I have no 
doubt that you did your best to be fair in that evaluation.
    Ms. Dodson. Thank you. We did, Senator, try to do our very 
best to give a fair and impartial----
    Senator Sessions. I am biased in favor of litigators, 
myself. If somebody has been in the courtroom and has not been 
placed in jail for contempt or something and they have won the 
respect of their colleagues, and they are a man of integrity, I 
think that is an asset. If you lack that, I think there is less 
ability to know. Thank you so much.
    I would call the next panel. Mr. McDuff had to go catch a 
flight. We will make his testimony a part of the record.
    [The prepared statement of Mr. McDuff appears as a 
submission for the record.]
    Senator Sessions. If we could get started. Well, this is a 
good panel. It is good to see my former colleague, Mr. 
Blumenthal, as Attorney General. You are still Attorney 
General.
    Mr. Blumenthal. I am still Attorney General, Senator. Thank 
you.
    Senator Sessions. Yes. If you would stand, we will 
administer the oath for each of you.
    [Whereupon, the witnesses were duly sworn.]
    Senator Sessions. Please be seated.
    So we had an interesting panel. I apologize for having to 
put you through that. But it is a matter that continues to 
bubble up on these evaluations. Most of the time I think things 
go well. On this one, we have had some conflict.
    Mr. Blumenthal, I know you have to leave right away. If the 
others do not mind, I would be pleased to have you speak first. 
You serve as the Attorney General. You are an Honors graduate 
from Harvard, Phi Beta Kappa. You got your law degree from 
Yale. You clerked for Justice Harry Blackmun.
    I did not know all of this stuff about you. I am not 
surprised, but I did not know it. You are volunteer counsel for 
the NAACP Legal Defense Fund, and were elected in 1990 as 
Attorney General for Connecticut. We would be glad to hear from 
you.

 STATEMENT OF HON. RICHARD BLUMENTHAL, ATTORNEY GENERAL, STATE 
             OF CONNECTICUT, HARTFORD, CONNECTICUT

    Mr. Blumenthal. Thank you very much, Senator. I am honored 
to be with one of my former colleagues--in fact, two of my 
former colleagues, because the Senator from Texas also was one 
of our brethren.
    I am honored to be before this Committee again, truly 
honored, as I always am, to be before the Judiciary Committee. 
I want to thank you and your staff for being so accommodating. 
I do apologize that I will be leaving, with the Chair's 
permission, when I finish my remarks. I thank my colleagues 
today for their indulgence as well.
    Let me just say, I have found that this session has been 
enormously illuminating and enlightening, because I think that 
your questioning and the questioning that has occurred has 
really elicited some very insightful information, some very 
profoundly important information about the process and about 
the need for some checks and balances on the ABA rating system. 
In my testimony--and I hope the Committee may accept my 
testimony in full and make it part of the record.
    Senator Sessions. We will make it a part of the record.
    Mr. Blumenthal. Thank you.
    [The prepared statement of Mr. Blumenthal appears as a 
submission for the record.]
    Mr. Blumenthal. I make reference to the fallacies of using 
anonymous, unidentified, unnamed sources, the lack of 
accountability, the lack of transparency in that process. It 
applies with special force to Judge Bryant.
    Let me just say, among those academic qualifications that 
you mentioned, I am most proud of having tried cases for 30 
years as U.S. Attorney. As State Attorney General, I still try 
and argue cases. I have appeared before Judge Bryant, as have 
my staff, frequently, constantly, continuously.
    Senator Sessions. You have personally appeared before her?
    Mr. Blumenthal. I have, indeed. I have, indeed.
    So I am speaking here from personal experience, as well as 
the experience of my staff in saying that she is eminently 
qualified. She has superb qualifications of intellect and 
integrity and temperament.
    Let me be very blunt. As Senator Lieberman told this 
Committee, she reduced the backlog in her court, one of the 
busiest in the State, by 25 percent. No judge accomplishes that 
task without setting deadlines, disciplining lawyers when they 
fail to meet those deadlines, insisting on timely briefs and 
preparation, being strong-minded and strong-willed, and 
imposing the kind of high standards that we all would expect of 
a State court judge and a Federal court judge.
    I must disagree strongly, although I have great respect for 
the previous panel and for the work they do, and the immense 
amount of time and dedication that they haven given to this 
process. I disagree strongly that she lacks the experience.
    In fact, on the contrary, she has precisely the experience 
that we would seek in a district court judge, which is to move 
cases with intellect, insight, faith to legal principle and to 
the interests of the litigants.
    I say in my testimony at greater length why I feel she has 
many of the qualities that you and I--and I have deep respect 
for your own experience in the trenches, so to speak--would 
hope to have in a judge trying our case, which is not only 
scholarship, but also common sense, good humor, balance, 
patience, and a sense of what is important in life.
    So I think she conducts herself, on and off the bench, with 
grace, dignity, and a sense of both compassion and conviction 
that are among the highest standards that this Committee would 
expect.
    I thank you very much, Senator, for giving me this 
opportunity to be before you, and for your own dedication in 
spending the long hours you did today on this committee. Thank 
you.
    Senator Sessions. Thank you. I did not exactly think I 
would be the only one here at this hour.
    [Laughter.]
    But it has been an important hearing. I know Senator 
Specter just could not stay. I think it was important to go 
forward.
    Thank you for your insight. You are so well-respected among 
your colleagues. The fact that you and your assistants appear 
before her on a regular basis and that you have that opinion, I 
think, is very valuable to the committee, I really do. If you 
have to leave, we certainly understand and we thank you for 
your testimony.
    Mr. Blumenthal. Thank you, Senator. Thank you. I hope to be 
back. Thank you.
    Senator Sessions. Let me see. We will try to go in the 
order that I believe was on the list here.
    Justice Anderson presided over cases where Mr. Wallace 
litigated, sat as opposing counsel in other cases, and now has 
worked alongside him in a law firm for over a decade.
    You received your undergraduate degree at Tugaloo College 
in 1964, your law degree from the Mississippi School of Law.
    Justice Anderson. No, Ole Miss.
    Senator Sessions. It is Ole Miss?
    Justice Anderson. University of Mississippi.
    Senator Sessions. All right. You were an advocate counsel 
for the NAACP Legal Defense and Education Fund from 1967 to 
1975, and you began your judicial career in 1976. You were the 
first African-American to serve on the Mississippi Supreme 
Court.
    After leaving the bench, you accepted a position at Phelps 
Dunbar. You are past Chairman of the Rhodes Scholarship 
Selection Committee, a member of the 100 Black Men of Jackson, 
the American Bar Association, and a former president of the 
Mississippi Bar Association.
    So we would be delighted to hear from you at this time.

   STATEMENT OF REUBEN ANDERSON, PARTNER, PHELPS DUNBAR LLP, 
                      JACKSON, MISSISSIPPI

    Justice Anderson. You have got three lawyers here from 
Mississippi who have got an 8:00 flight, so I will not consume 
a whole lot of time here, Mr. Chairman.
    Senator Sessions. You do not have much.
    Justice Anderson. Let me say that I have sat here most of 
the afternoon and heard all of the testimony, and the 
conclusion of the ABA is that Mike Wallace is a brilliant 
lawyer, he is talented, he has much integrity, but they raise 
some questions about his judicial temperament.
    The case that they talked about, the Claiborne County case, 
I was on the Mississippi Supreme Court when that case was 
argued. That was the first time I was ever exposed to Mr. 
Wallace. He is a brilliant and talented lawyer. That was one of 
the reasons I joined the Phelps Dunbar law firm, is because he 
was there. Instead of going to the library, I could go to him.
    Senator Sessions. It is always good to have that kind of 
lawyer in the firm.
    Justice Anderson. Yes. With that aside, I have observed him 
in every capacity since I have been with Phelps Dunbar for 15 
years. I have tried cases with him. I have visited in his home, 
he has visited in mine. I know his family well.
    There is no aspect of him that I have any problems with. 
Issues of bias and prejudice, that is not a part of Mike 
Wallace. Being concerned about the poor, he is. He is an 
honorable man. He will make an excellent judge. I can say this 
without any reservations.
    I say that because I have spent the time with him. Very few 
weeks go by that he and I are not in contact with each other. 
We work on many cases, and over the years we have probably 
worked on 30 or 40 cases together.
    I have spent as long as 6 weeks in the courtroom with him. 
I can say that I recommend him. I do not agree with a whole lot 
that our President does, but this is one smart thing that he 
has done, and that is recommending Mike Wallace to the Fifth 
Circuit Court of Appeals.
    Thank you, Mr. Chairman.
    [The prepared statement of Justice Anderson appears as a 
submission for the record.]
    Senator Sessions. Thank you very much. I know those are 
valuable comments and perspective that you bring.
    If you need to go, I will ask this one question. You were 
in Mississippi during the transition. It was driven by the 
Voting Rights Act and the civil rights movement. We have a new 
South today. It is not perfect, but it is in many ways, I guess 
remarkable.
    But do you feel like Mr. Wallace in any way has opposed the 
fundamental racial progress that has been made, in your 
observation of his law practice and his association with you?
    Justice Anderson. I joined Phelps Dunbar in 1991, and I was 
the first African-American lawyer there. We have more African-
American lawyers at that law firm than any law firm in 
Mississippi. In fact, we have more African-Americans in our law 
firm proportionately than any law firm, that is, our regional 
law firm.
    Mike has mentored our African-American lawyers. He has 
taken an interest in it. He knows how important it is to our 
law firm and to the State. There has been no occasion that 
anybody in our office has ever expressed any reservations with 
regards to race.
    Senator Sessions. Justice Anderson, can you understand that 
maybe some lawyers who litigated against him in important civil 
rights cases, that they might have a misimpression of him 
because he aggressively advocated the Republican Party views in 
some of those cases?
    Justice Anderson. Senator, if you saw him today, you can 
see he is abrasive, he is aggressive, but he never talks out of 
both sides of his mouth. You know where he stands at all times. 
That is the kind of individual that makes a good judge, you 
know where they stand. He would not be adverse to any segment 
of this society.
    Senator Sessions. Thank you very much.
    Mr. Welch. W. Scott Welch, III got his B.A. from the 
University of the South, with Honors, and his J.D. from the 
University of Mississippi, with distinction. He served as 
Assistant Staff Judge Advocate in the Air Force, and moved home 
to Jackson in 1967.
    You have practiced law for 40 years. You are a partner and 
a shareholder with the firm of Baker, Donaldson, Bearman, 
Caldwell & Berkowitz. You concentrate in civil litigation.
    You are the past president of the Mississippi Bar, 
president of the American Board of Trial Advocates, and former 
Mississippi delegate to the American Bar Association House of 
Delegates from 2001 until this year, and you currently serve on 
the ABA's Board of Governors.
    Mr. Welch, we are glad to hear from you.

STATEMENT OF W. SCOTT WELCH, III, SHAREHOLDER, BAKER, DONELSON, 
      BEARMAN, CALDWELL & BERKOWITZ, JACKSON, MISSISSIPPI

    Mr. Welch. Thank you, Senator. I appreciate the opportunity 
to be here. I will likely be even more brief than Justice 
Anderson.
    You have my testimony, which I understand will be part of 
the record. I would like to say just about three things, very 
briefly, which may not be highlighted in my written testimony.
    One, is a remark was made that there needs to be some 
checks and balances on this problem of anonymity in the ABA 
process and the opportunity of the nominee to refute that. I 
submit to you that the check and balance exists, it has just 
been ignored in this instance by the ABA.
    The Backgrounder that has been referred to by the members 
of the Committee who have testified here today and in their 
written testimony specifically says, ``If the nominee does not 
have the opportunity to rebut certain adverse comments because 
they cannot be disclosed without breaching confidentiality, the 
investigator will not use those comments in writing the formal 
report and the Committee will not consider them in its 
evaluation.''
    That is diametrically opposed to what has been done in this 
case. They have not revealed the comments because they properly 
could not breach confidentiality, but they have ignored the 
part of the Backgrounder that says the investigator will not 
use those comments and the Committee will not rely on them. 
That is all that is before this Committee this afternoon.
    The man has the task of trying to refute other people's 
opinions about him. Confidentiality does not play a role in 
that aspect of this process. Confidentiality is for when I tell 
the investigator, you may not know it anyplace else, but Mr. 
Wallace had a conviction for this, that, or the other.
    You may not be able to find it anywhere else, but Mr. 
Wallace's grades at Harvard University were not obtained in a 
proper manner, he cheated on exams. Those are things that can 
be verified, as you have alluded to earlier.
    The process that the ABA has had the checks and balances in 
it. They simply ignored it in this instance. I would urge this 
Committee that it not ignore it. I would urge this Committee 
that it not ignore the role of Mr. Tober in the Committee 
process. You have been asked about that, and it is mentioned in 
my testimony in a parenthetical reference where I am not 
comfortable leaving it.
    Mr. Tober's role in the Committee process--not their 
deliberations, not voting on their recommendation to the 
committee--is that he served as chair of the Appointments 
Committee for the ABA president, then Michael Greco, in 
determining who would be appointed to the Standing Committee on 
the Federal Judiciary.
    Mississippi asked for a seat on that Committee from the 
Fifth Circuit that we have not had for 34 years, and for some 
reason we were not given that seat this time even though it was 
time.
    Senator Sessions. Wait a minute. Just to follow that up.
    Mr. Welch. I made application to be appointed to that 
Committee because, among other things, the State of Mississippi 
has not had the Fifth Circuit designated seat on that Committee 
since 1974, and we thought it was time.
    Senator Sessions. So Mr. Tober, who has had a fairly 
aggressive run-in with Mr. Wallace years ago over the Legal 
Services Corporation, he is the person that made the 
recommendation to the President about who would serve on the 
committee.
    Mr. Welch. He was the chair of a Committee that made 
recommendations and reviewed all of the applications by members 
of the ABA to be appointed.
    Now, I was not there. I do not know what was discussed. I 
am a supporter of ABA. I am proud to be a member of the ABA. I 
am proud of the role I have in the leadership of the ABA. I am 
proud to take the debate to the floor of the ABA on occasion. 
Generally I lose, but I am proud to take it there, nonetheless.
    The final thing I would say, is I was interviewed by Mr. 
Hopkins and Mr. Hayward. I was asked by Mr. Hopkins, would you 
have any reluctance in representing a minority or a poor person 
in a hearing before the nominee? Would you be concerned you 
could not get a fair hearing?
    My answer to Mr. Hopkins, which I did not ask for any 
confidentiality on and I am happy to share, is that I have 
enough confidence in Mike Wallace's abilities to be a judge of 
the Court of Appeals of the Fifth Circuit, my circuit, that I 
would represent Mr. Tober and Mr. Greco in a hearing before 
Mike Wallace and I would have every confidence that I would get 
a fair hearing, they would get a fair hearing, and they would 
have a case that would be decided in accordance with the law. 
That is all.
    [The prepared statement of Mr. Welch appears as a 
submission for the record.]
    Senator Sessions. Thank you very much, Mr. Welch.
    Is it Judge Rhodes?
    Mr. Rhodes. Just Carroll.
    Senator Sessions. You need to take that sign home that says 
``judge'' on it. You surely may. Thank you very much. Sorry to 
keep you so late.
    You got your undergraduate degree from Milsaps College, a 
fine school, and a J.D. from the University of Mississippi 
School of Law. You served in the Air Force and began practicing 
law with Central Mississippi Legal Services in Hazlehurst. You 
left Mississippi Legal Services in 1979 and established a solo 
practice.
    You have served as a municipal court judge for Hazlehurst. 
Then from 1993 to 1994, you were a partner with Priester, 
Priester & Rhodes. In your current position, you practice civil 
and criminal law, with an emphasis on civil rights and personal 
injury law.
    Mr. Rhodes, we are delighted to hear from you.

   STATEMENT OF CARROLL RHODES, ATTORNEY AT LAW, HAZLEHURST, 
                          MISSISSIPPI

    Mr. Rhodes. Thank you, Mr. Chairman. I, too, have to catch 
a plane. I have submitted written testimony. May I ask that the 
written testimony be made a part of the record?
    Senator Sessions. We will make that a part of the record.
    [The prepared statement of Mr. Rhodes appears as a 
submission for the record.]
    Mr. Rhodes. Also, Mr. Rob McDuff, who was supposed to be 
here as well, he had to catch a plane. He had submitted written 
testimony.
    Senator Sessions. Yes. And we will make his part of the 
record.
    Mr. Rhodes. Thank you. He had asked me if I would ask you 
to make it a part of the record.
    I testify today on behalf of two organizations, primarily, 
the Mississippi State Conference of the NAACP and the Magnolia 
Bar Association. The Magnolia Bar Association is an association 
of primarily African-American lawyers in the State of 
Mississippi. Both the Mississippi Conference of the NAACP and 
the Magnolia Bar are opposed to Mr. Wallace's nomination.
    As a threshold matter, they are opposed to the nomination 
because of diversity. There are 14 active and senior District 
Court judges in Mississippi. Of that 14, only one is black. 
There are two appellate court judges from the State of 
Mississippi to the Fifth Circuit Court of Appeals, neither one 
black.
    President Bush has submitted eight nominations for the 
Federal bench in Mississippi, not one has been black. But 
Mississippi has a black population, higher than any other State 
in the Nation, 36.5 percent. One of the reasons we oppose Mr. 
Wallace's nomination is because of a lack of diversity on the 
Federal bench.
    Mr. Wallace's record is well known to the NAACP and to the 
Magnolia Bar Association. In 1983, the NAACP opposed Mr. 
Wallace's nomination to the board of Legal Services 
Corporation, and they cited his opposition to the Voting Rights 
Act and his support of tax-exemption for racially 
discriminatory schools.
    Mr. Wallace's actions while serving on the Legal Services 
board warrant the Senate's serious review of his nomination to 
this Federal bench. The primary reason is that we believe that 
Mr. Wallace is insensitive to poor Americans. I am not talking 
about Hondurans, but we are talking about poor people in 
America, primarily, within the Fifth Circuit Court of Appeals.
    Mr. Wallace advocated principles and practices directly 
contrary to the goals of the programs he was appointed to 
oversee while he was chair of the board. He had advocated that 
the board was unconstitutional and reduced the budgets of the 
board.
    He advocated that Legal Services should not represent 
people in certain types of cases--fee-generating cases, 
supposedly--cases like voting rights cases and other civil 
rights cases.
    However, once the Legal Services Corporation stopped 
representing people in so-called fee-generating cases, then 
poor people in Mississippi were left without lawyers. For black 
and white residents in Mississippi, many poor families paid 
usurious interest rates on consumer loans for household 
furniture until Legal Services lawyers successfully challenged 
the practice and forced creditors to comply with the Truth in 
Lending Act.
    Black voters in small towns like Woodville, Centerville, 
and Wickerson County, Mississippi were unable to elect black 
representatives of their choice to city government and to 
county government until the Legal Services Corporation, 
Southwest Mississippi Legal Services, and blacks in North 
Mississippi, in Oxford, Greenwood, and other areas in the 
Mississippi North and Delta, were unable to elect blacks to 
governmental positions there until the North Mississippi Rural 
Legal Services stepped in and represented black plaintiffs, 
along with the NAACP, the Legal Defense and Educational Fund, 
and the Lawyers' Committee for Civil Rights Under Law, and 
lawyers in private practice such as Rob McDuff, Ellis Turnich, 
Debra MacDonald, Wilber Cologne, Victor Mateer, and myself.
    So Legal Services did play an important role in providing 
representation to poor people in Mississippi on a variety of 
cases until Mr. Wallace's policies were implemented, cutting 
back the role that Legal Service would play. Because of his 
role, poor people did suffer. There was a void there. There 
were no lawyers who stepped up to fill the void.
    There were a few lawyers who tried to do what we could, but 
our resources were limited. Once the Legal Services program 
stopped representing people in a lot of these areas, then many 
poor people were left without representation.
    As far as the remainder of my testimony, since I have to 
catch a flight, I would rely on the remainder of the written 
testimony that I have submitted.
    I would add that I have known Mr. Wallace for 20 years. He 
has been pleasant and cordial to me in the times I have 
encountered him, both in court and outside of court. But I also 
know that he has advocated positions that went beyond the 
bounds of zealous advocacy and zealous representation of 
clients.
    I would be uncomfortable if Mr. Wallace was on the bench 
and having certain types of cases being decided by him. I have 
been involved in voting rights cases where Mr. Wallace has 
advocated that courts do not need to draw black majority 
districts for interim elections, instead, just draw square 
districts.
    Start at the top of Mississippi and draw square districts 
all the way down the State and do not give any consideration to 
whether the district is majority black or majority white.
    In doing that, you are talking about possibly turning the 
clock back to a time in Mississippi that we do not really want 
to go back to. Mr. Wallace has advocated at-large methods of 
elections and court, after court, after court has struck down 
those as being racially discriminatory in Mississippi.
    I would just feel uncomfortable, on certain types of voting 
rights cases, of taking those in front of Mr. Wallace because I 
think his personal views would interfere more so than his 
advocacy as an attorney.
    Thank you. If you have any questions, I will try to answer 
them.
    Senator Sessions. Well, I will not keep you. The Voting 
Rights Act was an event that I think empowered African-
Americans in the South. I do not deny that. But it does remain 
a fact today that a county that has no history of 
discrimination still has to get approval from the Department of 
Justice to move a voting place from the schoolhouse across the 
street. So, there are a lot of things that people have 
expressed concerns about.
    The at-large districts and those issues have been litigated 
hard. I think the law is settling pretty clearly now, but I 
think you would agree that a number of African-Americans are 
concerned about super-minority districts, whether they might be 
better off having votes in two or three districts instead of 
putting all those in one.
    So there are a lot of discussions about exactly what the 
right thing to do is in creating a colorblind society that I 
think we all favor. So we thank you for your comments. We thank 
you for coming up here. I hope you do not miss your flight.
    We will keep this record open for 1 week for any further 
information that people would like to submit. If there is 
nothing else to come before us, we are adjourned.
    [Whereupon, at 7:22 p.m. the hearing was adjourned.]
    [Questions and answers and submissions for the record 
follow.]

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