[Congressional Record Volume 153, Number 7 (Friday, January 12, 2007)]
[Senate]
[Pages S505-S508]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
JUDICIAL NOMINEES
Mr. KYL. Mr. President, I rise today to express my regret that
nominations to the U.S. Courts of Appeals will not be resubmitted for
William G. Myers, Judge Terrence Boyle, William J. Haynes, and Michael
B. Wallace. All four of these nominees were eminently qualified to
serve on the U.S. Court of Appeals and no reasonable question has been
raised as to their integrity. Each of them very likely would have been
confirmed had they been afforded to the courtesy of a vote by the U.S.
Senate. It is generally understood that the Senate did not vote on
these nominations because of Democratic threats of obstruction and
filibuster, and that the President chose not to resubmit these
nominations as a result of a hard political calculation that the new
Democratic majority in the Senate would not allow a vote on these
nominations during the remainder of his Presidency. These nominees were
not treated fairly by this institution. This week's action reflects
poorly on the Senate.
Much could be said about each of these nominees, their
qualifications, and the way that they were treated throughout the
judicial nominations process. I would like today to simply submit for
the Record a column published by Edward Whelan in National
[[Page S506]]
Review Online. Mr. Whelan's column raises some disturbing questions
about the American Bar Association's actions with regard to Michael B.
Wallace, whom the President had nominated to the U.S. Court of Appeals
for the Fifth Circuit. Mr. Wallace is a graduate of Harvard University
and received his law degree from the University of Virginia, where he
served on the law review and was elected to the Order of the Coif. He
clerked for Justice William Rehnquist on the United States Supreme
Court. He became an associate and later a partner at a major law firm
in his home state of Mississippi. His over twenty years of legal
practice focused on complex commercial and constitutional litigation
and afforded him substantial appellate experience. Mr. Wallace even
argued and won a case before the United States Supreme Court. These are
obviously superb qualifications to serve on the U.S. Court of Appeals.
It is generally understood that the ultimate reason why Mr. Wallace's
nomination has not been resubmitted is that he was rated ``not
qualified'' by the ABA. on account of his ``temperament.'' Mr. Whelan's
column paints a disturbing picture of the process by which the ABA.
came to rate Mr. Wallace. Mr. Whelan presents persuasive evidence that
the ABA not only allowed its evaluations process to be corrupted by
individuals who used it to carry out personal and political vendettas
against Mr. Wallace, but that the chairwoman of the ABA's judicial
evaluations committee perjured herself in her testimony before the
Senate Judiciary Committee.
To Mr. Whelan's column, I would simply add that I found the ABA's
written justification for its rating of Mr. Wallace to be stunningly
unpersuasive. The grounds cited in the ABA's written testimony, to the
extent that they provided any verifiable basis at all for the ABA's
rating of Mr. Wallace, do not stand up to even the most cursory
scrutiny. To cite just one example: the ABA found that Mr. Wallace
lacked the ``temperament'' to be a judge in part because ``positions
taken by Mr. Wallace related to the Voting Rights Act'' in the course
of the Jordan v. Winter litigation were ``not well-founded and [were]
contrary . . . to existing interpretations of the Voting Rights Act.''
Mr. Wallace had argued in the Jordan case that the 1982 amendments to
the Voting Rights Act did not invalidate a State's redistricting plan
absent some evidence that the plan was the product of racial
discrimination. At the time that Mr. Wallace made this argument, the
1982 amendments were less than a year old. Moreover, when the very case
that Mr. Wallace litigated went to the Supreme Court, two Justices of
that Court filed an opinion that substantially agreed with Mr.
Wallace's litigating position. These two Justices also noted that ``the
language used in the amended statute is, to say the least, rather
unclear.'' Mississippi Republican Executive Committee v. Brooks, 469
U.S. 1002, 1010, Rehnquist, J., dissenting. See also id. at 1012, ``we
have a statute whose meaning is by no means easy to determine.''
Thus the ABA has rated Mr. Wallace as ``not qualified'' on the basis
that he argued for a particular interpretation of a statute when the
statute was new and was not yet subject to an authoritative
interpretation, when Mr. Wallace's position was later adopted by two
members of the U.S. Supreme Court, and when those same Supreme Court
Justices characterized the statute as ``unclear.'' I find the ABA's
analysis to be wholly unreasonable. It is a lawyer's duty to make good-
faith arguments on behalf of his client. Yet in the case of Mr.
Wallace, the ABA has effectively taken the position that if a lawyer
argues for an interpretation of a statute that is ultimately rejected
by the courts, then even if the statute is new and unclear and the
lawyer's interpretation is even endorsed by some members of the U.S.
Supreme Court, the lawyer's litigating position shows that he lacks a
``judicial temperament'' and that he is ``not qualified'' to serve as a
Federal judge. This is a frivolous argument. It is an argument that the
ABA should be embarrassed and ashamed to have made to the Senate
Judiciary Committee.
I ask unanimous consent that the following column be printed in the
Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the National Review Online, Jan. 10, 2007]
Not Credible ``Whatsoever''
(By Edward Whelan)
Among the many challenges that new White House counsel Fred
Fielding will face on judicial nominations is ensuring that
the American Bar Association's ideologically stacked judicial
evaluations committee behaves responsibly. Now that
Mississippi attorney Michael B. Wallace has requested that
President Bush not renominate him to serve on the U.S. Court
of Appeals for the Fifth Circuit, it is instructive to
complete an accounting of the ABA's thoroughly scandalous
``not qualified'' rating of Wallace.
Although it determined that Wallace ``has the highest
professional competence'' and ``possesses the integrity to
serve on the bench,'' the ABA judicial-evaluations committee
found him lacking on the highly malleable element of
``judicial temperament.'' As I have previously documented,
bias, a glaring conflict of interest, incompetence, a stacked
committee, violation of its own procedures, and cheap
gamesmanship marked the ABA's evaluation of Wallace. Those
internal defects were compounded at Wallace's September 2006
hearing by the incredible testimony given under oath--flat-
out perjury, in my judgment--by the new chair of the ABA
committee, Philadelphia lawyer Roberta Liebenberg.
Liebenberg's testimony merits careful scrutiny as an
illustration of the depths to which the ABA will descend to
defend its internal failings.
First, some background: One of the several scandals
surrounding the ABA's evaluation of Wallace relates to the
fact that the chair of the ABA committee at the time of the
evaluation, Stephen Tober, had had a major run-in with
Wallace in 1987 when Wallace served on the board of the Legal
Services Corporation (a federal agency that funds legal
services for the poor and that was the focus of contentious
reform efforts). In the course of strikingly intemperate and
buffoonish testimony before an LSC committee headed by
Wallace, Tober twice accused him of a ``hidden agenda.'' (The
ABA president at the time of the ABA's evaluation of Wallace,
Michael Greco, and another ABA committee member, Marna
Tucker, had likewise attacked Wallace over contentious LSC
matters.) On the Wallace evaluation, Tober played the
customary role that the ABA committee chair plays (and that
is set forth in the ABA's so-called Backgrounder): He
assigned Fifth Circuit member Kim Askew--whose own biases and
conflict of interest concerning Wallace are an even greater
scandal--to conduct the investigation. He reviewed her draft
report with her. In light of her proposed ``not qualified''
rating, he assigned a second person, Thomas Hayward, to
conduct a second evaluation of Wallace. He reviewed Hayward's
draft report with him. He determined that he was satisfied
with the ``quality and thoroughness'' of Askew's
investigation, and made the same determination regarding
Hayward's investigation. He then directed his committee
colleagues to read Askew's report and Hayward's report in
tandem.
Without any deliberation among the committee members (so
Liebenberg has informed me), Tober then received and tallied
the votes of the other committee members. Under the ABA
committee's procedures, the chair votes only in the event of
a tie, so Tober did not cast a vote. Tober then reported
the committee's unanimous ``not qualified'' rating to the
Senate Judiciary Committee.
Beyond the fact that Tober plainly should have recused
himself from the Wal1ace evaluation, many of the facts that I
recite about Tober's role are in themselves of little
interest. What ought to be of considerable interest, however,
to anyone who cares about the integrity of the manner in
which the ABA committee carries out the privileged role in
the judicial-confirmation process that the Senate Judiciary
Committee accords it, are Liebenberg's sworn statements about
Tober's role in the Wallace evaluation.
Time after time, in emphatic, categorical declarations,
Liebenberg testified that it was immaterial that Tober had
not recused himself because, she claimed, he simply had no
role at all in the ABA committee's evaluation of Wallace:
``This is not a process where Mr. Tober had any role
whatsoever in the evaluation or the vote.'' (Transcript, p.
134 (emphasis added))
``it is important to emphasize that Mr. Tober did not
participate in any way in the rating'' of Wallace
(Transcript, p. 126 (emphasis added))
Tober ``did not participate in either the evaluation or the
rating'' (Transcript, p. 126)
``neither Mr. Tober, nor Mr. Greco participated in the
evaluation or the rating of Mr. Wallace'' (Transcript, p.
128)
``I would just, again, add that Mr. Tober did not
participate in the evaluation'' (Transcript, p. 131)
Tober, as chair of the committee, ``does not oversee the
evaluations'' (Transcript, p. 131)
I have the same reaction to these sworn statements that I
had when I first heard them in Liebenberg's live testimony:
These statements are patently false, and Liebenberg, as an
ABA committee member during the Wallace evaluation and as
chair at the time of her testimony, had ample reason to know
that they were false. Indeed, in
[[Page S507]]
her prepared testimony, Liebenberg stated, ``The evaluation
of Mr. Wallace was conducted in accordance with the normal
practices and procedures'' of the ABA committee, and she
referred senators to the ABA's Backgrounder for a ``more
detailed description of these procedures.''
In recent weeks, I have, through an intermediary friendly
to Liebenberg, afforded her the opportunity to dispute or
clarify my understanding of the facts that render her
testimony false. She has availed herself of the opportunity,
and the exchange, in my judgment, has clearly confirmed my
understanding. (See the appendix below.)
In sum, Liebenberg's sworn testimony that ``This is not a
process where Mr. Tober had any role whatsoever in the
evaluation or the vote,'' and her other categorical
statements to the same effect, are truthful only if
``whatsoever'' is not given anything close to its ordinary
meaning but is instead a secret code that means, at a
minimum, ``except that he assigned the first investigator,
reviewed her draft report with her, assigned the second
investigator, reviewed his draft report with him, determined
that he was satisfied with the quality and thoroughness of
both investigations, directed his committee colleagues to
read the investigators' reports in tandem, received and
tallied the votes, and reported the ABA's rating to the
Senate Judiciary Committee.''
In her exchange with me, Liebenberg now maintains that
Tober ``did not play a substantive role in the evaluation or
rating of Mr. Wallace.'' (Emphasis added.) That modifier
``substantive'' is conspicuously absent from her Senate
testimony. Indeed, her categorical denial that Tober had
``any role whatsoever in the evaluation'' and her assertion
that he ``did not participate in any way'' do not permit
reading in that modifier. Moreover, I think it plain that
Tober did play a ``substantive'' role--among various
respects, in selecting the two investigators and in
determining that he was satisfied with the ``quality and
thoroughness'' of the investigations.
It is also worth noting that Liebenberg's effort to obscure
Tober's actual role stands in striking contrast to the ABA's
effort to justify its re-rating of D.C. Circuit nominee (and
now judge) Brett Kavanaugh. In that case, the shenanigans of
the circuit investigator, Mama Tucker, deserved scrutiny. But
Tober, who played essentially the same role as chair there as
he did on Wallace's nomination, gave Tucker cover by
presenting the entire testimony for the ABA committee. He
never remotely suggested the absurd notion that he had played
no role in the evaluation or rating and was therefore not
competent to testify.
I have no reason to doubt that Liebenberg is a fine lawyer
and, by the standards of the legal profession, generally an
honorable person. The interesting question is how such a
person could ever have made the statements that she did, let
alone under oath. The answer, I would suggest, is that the
ideological partisanship, intellectual mediocrity, and
institutionalized mendacity of the ABA--the ABA's culture, so
to speak--tend to degrade those who rise within its ranks.
I don't know Wallace, and I leave open the theoretical
possibility that, notwithstanding what his many supporters
say, he lacks the necessary judicial temperament. The
thoroughly scandalous process by which the ABA reached that
judgment, however, provides no basis for confidence in its
assessment. Nor, given the ``go along to get along''
collective posterior-covering ethos of the ABA, is there any
reason to credit the more recent supplemental evaluations of
Wallace. This is especially so because assessments of
judicial temperament are so subjective and manipulable.
Indeed, it is striking to contrast the extrapolations made
about Wallace's judicial temperament from his experience as a
litigator with the ABA's unanimous conclusion a dozen years
ago that federal district judge Lee Sarokin was ``well
qualified'' to be elevated to the Third Circuit. Despite the
fact that the Third Circuit had lambasted Sarokin for
``judicial usurpation of power,'' for ignoring ``fundamental
concepts of due process,'' for destroying the appearance of
judicial impartiality, and for ``superimpos[ing his] own view
of what the law should be in the face of the Supreme Court's
contrary precedent,'' the ABA had no concerns about his
judicial temperament. But, of course, Sarokin was a nominee
of President Clinton and was a self-described ``flaming
liberal'' as a judge.
Can the ABA possibly sink any lower? Let's see what these
next two years bring.
Appendix
On November 27, 2006, I sent to an intermediary who is
friendly to Roberta Liebenberg the twelve propositions set
forth below and invited her to let me know whether she agreed
or disagreed with the propositions and to provide any
amplification (or any reference to other material) that she
saw fit to provide. On December 1, 2006, that intermediary
responded, stating that he had reviewed the propositions with
Liebenberg and providing her responses (which ``she has
confirmed with Mr. Tober''). I set forth in full below those
responses and my brief replies.
Proposition 1: Tober assigned Askew to conduct the
investigation of Wallace.
Liebenberg response: ``Consistent with the standard
practice of the Standing Committee, which generally provides
for an evaluation to be conducted by the Committee member
from the circuit to which the nomination has been made, Ms.
Askew was assigned by Mr. Tober to conduct the Wallace
evaluation because she served as the Fifth Circuit
representative on the Committee.''
My reply: Liebenberg concedes Tober's role. As Tober
testified, the investigation is ``ordinarily assigned'' to
the circuit member, ``although it may be conducted by another
member or former member.'' Whether or not to apply the
default rule, and what sort of preliminary inquiry ought to
be undertaken, requires a decision-indeed, a substantive
judgment (or a failure to exercise judgment)--on the part of
the chair. Tober decided to have Askew perform the review
despite her ideological bias against Wallace. Further, when
Tober became aware (or should have become aware) of facts
demonstrating that Askew had an actual conflict of interest,
he continued to let her perform the review.
Proposition 2: Tober reviewed Askew's draft report with
her.
Liebenberg response: ``Mr. Tober did not review Ms. Askew's
draft report with her, nor did he perform a substantive
review of that report. Instead, his review was solely
procedural in nature. He utilized a procedural checklist to
ensure that, among other things, all disciplinary agencies
had been contacted, the requisite number of interviews had
been conducted, and a sufficient number of writing samples
had been submitted and reviewed. Mr. Tober did not edit,
delete, modify, or add anything to the report. He did not
tell Ms. Askew whom to interview or what to ask during her
interviews. Nor did he ask Ms. Askew to take any further
actions with respect to the report or her evaluation before
she circulated her report to the rest of the Standing
Committee.''
My reply: (a) The first clause of Liebenberg's response
contradicts her testimony that the Backgrounder's procedures
were followed. The Backgrounder states (on page 7): ``The
Chair reviews the informal report with the circuit member.''
(b) Liebenberg' s response contradicts itself. The first
sentence states that Tober did not review Askew's draft
report, but the second sentence concedes that he did review
it. (c) Liebenberg's response contrives an unsustainable
distinction between ``substantive'' and ``procedural''
review. Tober himself had authority to determine the
substantive content of his checklist.
Proposition 3: Tober assigned Hayward to conduct a
supplemental investigation of Mr. Wallace.
Liebenberg response: ``Mr. Tober assigned Mr. Hayward to
perform a second evaluation of Mr. Wallace. Mr. Hayward, who
is a former Chair of the Standing Committee, had participated
in the ratings of over 500 nominees during his tenure on the
Committee. Incidentally, Mr. Hayward is a Republican who has
made contributions to a number of Republican political
candidates.''
My reply: Liebenberg concedes Tober's role. (Incidentally,
Hayward did not re-interview any of the individuals
interviewed by Askew but instead accepted, and relied on, her
interview summaries. So much for an independent check.)
Proposition 4: Tober reviewed Hayward's draft report with
him.
Liebenberg's response: ``Mr. Tober did not review Mr.
Hayward's draft report with him, nor did he perform a
substantive review of that report. Instead, his review was
solely procedural in nature, and entailed the same process
set forth above in No. 2. As was true with Ms. Askew's
report, Mr. Tober did not edit, delete, modify, or add
anything to Mr. Hayward's report. He did not tell Mr. Hayward
whom to interview or what to ask during his interviews. Nor
did he ask Mr. Hayward to take any further actions with
respect to the report or his evaluation before Mr. Hayward
circulated his report to the rest of the Standing
Committee.''
My reply: My reply on Proposition 2 applies fully here.
Propositions 5 and 6: Tober determined that he was
satisfied with the quality and thoroughness of Askew's
investigation. Tober determined that he was satisfied with
the quality and thoroughness of Hayward's investigation.
Liebenberg's response: ``Mr. Tober's review of the draft
reports by Ms. Askew and Mr. Hayward for `quality and
thoroughness' did not entail any substantive input on his
part. Instead, his review was procedural in nature, as set
forth above in Nos. 2 and 4.''
My reply: The Backgrounder (which Liebenberg testified was
followed) makes clear that the chair must be ``satisfied with
the quality and thoroughness of the investigation.'' This
standard plainly requires a decision by the chair. Again,
Liebenberg's posited distinction between procedure and
substance is incoherent. Further, she conflates the issue
whether Tober provided ``any substantive input'' with the
distinct question whether he performed a substantive review.
(Incidentally, the fact that Tober evidently performed his
substantive role in such a perfunctory fashion undermines the
integrity of the ABA process. One reason to have a chair,
rather than simply a checklist, is to harmonize the
approaches taken by investigators so that ratings are
consistent and don't turn unduly on the assignment of the
investigator.)
Proposition 7: Tober directed his committee colleagues to
read Askew's report and Mr. Hayward's report ``in tandem''.
Liebenberg's response: ``Consistent with the practice of
the Committee, Ms. Askew circulated her report directly to
the Standing Committee members. In her transmittal
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letter accompanying the report she advised the members that
they would separately receive Mr. Hayward's report at or
about the same time. She also advised the Committee members
to review all of the evaluation materials, including the
documents pertaining to the Standing Committee's 1992
evaluations of Mr. Wallace, before voting on Mr. Wallace's
rating. It should be noted that Ms. Askew advised Committee
members that she was the person who should be called if they
had any questions about her report or the accompanying
materials.
``Subsequently, Mr. Tober similarly advised Committee
members to review the reports by Ms. Askew and Mr. Hayward in
tandem. He did not direct Committee members to ascribe more
significance to one report than another; did not suggest how
Committee members should vote; and did not discuss with Ms.
Askew, Mr. Hayward, or any members of the Committee his own
views of the professional qualifications of Mr. Wallace.''
My reply: Liebenberg concedes Tober's role.
Proposition 8: Whether in person, by telephone, by e-mail,
or in some other fashion, Tober was party to the ABA
committee's deliberations on Wallace.
Liebenberg's response: ``There were no `deliberations'
among Standing Committee members with respect to the rating
of Mr. Wallace. Each Committee member independently reviewed
the evaluation materials and voted on a rating to be given to
Mr. Wallace. Mr. Tober and the rest of the Standing Committee
did not have an in-person meeting, conference call, or e-mail
discussion regarding Mr. Wallace's qualifications or the
rating to be given to him.''
My reply: For present purposes, I assume the correctness of
Liebenberg's account. (If there were no deliberations on a
``not qualified'' recommendation--and on Askew's badly flawed
report--that would seem yet another damning indictment of the
ABA's processes.)
Propositions 9 and 10: Tober received and tallied the votes
from other committee members. Tober reported the ABA
committee's rating to the Senate Judiciary Committee.
Liebenberg's response: ``The 14 voting members of the
Committee conveyed their votes to Mr. Tober, who in turn
reported the Committee's unanimous 'Not Qualified' rating of
Mr. Wallace to the Senate Judiciary Committee.''
My reply: Liebenberg concedes Tober's role.
Proposition 11: At the Judiciary Committee hearing, Senator
Sessions asked Mr. Hayward, ``Are you aware that other
members of the [ABA] committee probably were aware that the
chair of the committee [i.e., Mr. Tober] had had a personal
run-in with the nominee, Mr. Wallace?'' Mr. Hayward replied,
``I said I was aware. If you read the record, you are
aware.'' (Transcript, pp. 142-143) I understand this exchange
to indicate that the confidential ABA committee report on Mr.
Wallace included a discussion of Mr. Tober's experience with,
and views of, Mr. Wallace.
Liebenberg's response: ``Neither the report by Ms. Askew
nor the report by Mr. Hayward included a discussion of Mr.
Tober's experience with, and views of, Mr. Wallace. The
evaluation materials did not include a discussion of any
`run-in' between Mr. Tober and Mr. Wallace in 1987, or any
other interactions between them. Mr. Tober was not
interviewed by Ms. Askew or Mr. Hayward about Mr. Wallace,
they did not solicit his views regarding the nominee, and he
did not volunteer to them his views.''
My reply: For present purposes, I assume the correctness of
Liebenberg's account.
Proposition 12: Liebenberg testified at the Judiciary
Committee hearing that ``it is important to emphasize that
Mr. Tober did not participate in any way in the rating'' of
Wallace (Transcript, p. 126); that Tober ``did not
participate in either the evaluation or the rating''
(Transcript, p. 126); that ``neither Mr. Tober, nor Mr.
Greco participated in the evaluation or the rating of Mr.
Wallace'' (Transcript, p. 128); that ``I would just,
again, add that Mr. Tober did not participate in the
evaluation'' (Transcript, p. 131); that Tober, as chair of
the committee, ``does not oversee the evaluations''
(Transcript, p. 131); and that ``This is not a process
where Mr. Tober had any role whatsoever in the evaluation
or the vote'' (Transcript, p. 134).
Liebenberg's response (presented in the third person):
``When Ms. Liebenberg testified that Mr. Tober did not
`participate' in the evaluation or rating of Mr. Wallace, her
testimony was based on the fact that Mr. Tober did not
conduct any of the evaluation interviews; was not interviewed
by Ms. Askew or Mr. Hayward; did not prepare the evaluation
reports or make any revisions to them; did not vote on Mr.
Wallace's rating; and did not express his own opinion of Mr.
Wallace's professional qualifications or what Mr. Wallace's
rating should be to Ms. Askew, Mr. Hayward, or anyone else on
the Committee. Thus, Mr. Tober did not play a substantive
role in the evaluation or rating of Mr. Wallace. Ms.
Liebenberg explained to the Senate Judiciary Committee that
the evaluations were the sole responsibility of Ms. Askew and
Mr. Hayward, and that each of the 14 voting members of the
Committee independently voted on the rating, with no
influence being exercised over their votes by Mr. Tober.
(transcript pp. 116, 121)''
My reply: Propositions 1-7, 9 and 10 establish that
Liebenberg's testimony was false. The transcript pages cited
in her response do not put a different gloss on Liebenberg's
testimony. Indeed, they consist entirely of (unrelated)
testimony by Askew, not Liebenberg.
____________________