[Congressional Record (Bound Edition), Volume 153 (2007), Part 1]
[Senate]
[Pages 1059-1062]
[From the U.S. 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 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

[[Page 1060]]

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 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

[[Page 1061]]

     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 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

[[Page 1062]]

     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.

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