American Bar Association Assails Conservative Fifth Circuit Nominee

Michael B. Wallace is victimized by scandalous abuses

If you’ve ever wondered why conservatives long ago lost trust in the American Bar Association’s capacity to be an impartial evaluator of judicial nominees, take a look at what the ABA did to Michael B. Wallace, whom George W. Bush nominated to a Fifth Circuit seat in 2006.

As I documented in detail years ago, the ABA committee’s “Not Qualified” rating of Wallace resulted from a process that was marked by deep flaws: pervasive bias, a glaring conflict of interest, feeble reasoning, a stacked committee, violation of its own procedures, and cheap gamesmanship. 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 chair of the ABA committee.

I’m not going to be exhaustive here, but let’s review some of the lowlights.

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When Bush nominated Wallace in February 2006, Wallace became Bush’s second nominee to fill the Mississippi seat on the Fifth Circuit that Judge Henry Politz had vacated late in Bill Clinton’s presidency. As I’ve recounted, the Left drove Senate Democrats to oppose Bush’s first nominee, Charles W. Pickering, by viciously misplaying the race card against a man whose admirable courage in prosecuting Klansmen earned him strong support from state and local civil-right leaders. Pickering ended up accepting a recess appointment that expired in December 2004.

Wallace, age 55, was a highly respected attorney with stellar credentials, including a Supreme Court clerkship for William Rehnquist. In addition to his commercial practice, Wallace represented the state Republican party in contentious legislative-redistricting cases. He also assisted the state attorney general in defending an abortion law that provided for informed consent, parental consent for minors, and licensing standards for physicians. During the presidencies of Ronald Reagan and George H.W. Bush, he served on the board of the Legal Services Corporation and pursued efforts to reform how it operated. In these various endeavors, he had attracted an ample share of political enemies.

Michael B. Wallace

One of those enemies was Stephen Tober, the chair of the ABA’s judicial-evaluations committee during its evaluation of Wallace. In intemperate and buffoonish testimony to a Legal Services Corporation committee in 1987, Tober twice incoherently accused Wallace of a “hidden agenda.”

The ABA committee member who led the investigation of Wallace was Dallas lawyer Kim Askew. Askew was serving at the same time on the board of trustees of the Lawyers’ Committee on Civil Rights, which occupies the hard Left on matters of race and which fervently opposed leading nominees of the Bush administration.

In her report on Wallace, Askew conceded that he “has the highest professional competence” and “possesses the integrity to serve on the bench.” But she found him lacking on the highly malleable element of “judicial temperament.” Her primary argument was that Wallace’s representation of the Mississippi Republican party in a 1984 congressional redistricting case somehow indicated that he was not committed to equal justice. Lawyers, she said, charged that the position that Wallace advanced on behalf of his client was not well-founded and that he was pushing his own personal views. But it is difficult to discern any sense to these charges, much less serious evidence to support them.

Worse, it turns out that the plaintiffs’ counsel in that case was none other than … the Lawyers’ Committee for Civil Rights. Thus, Askew was assessing the weight and credibility of comments made by those associated with the same left-wing group on whose board she served.

One striking comment by Askew preceded her presentation of her concerns about Wallace’s judicial temperament: “Importantly,” she stated, “lawyers who raised temperament concerns expressed familiarity with the Backgrounder [the ABA document setting forth how its judicial-evaluations committee operates] and, without my explanation of the Committee’s criteria, raised the very elements set forth in our temperament definition.” This point is indeed important, but not at all for any reason that Askew might be supposing. Either lawyers in Mississippi study and memorize internal ABA documents as though they were Scripture, or someone orchestrated a campaign against Wallace’s nomination and scripted the favored line of attack. Only someone naïve or obtuse or biased would not recognize the latter as the obvious explanation.

In response to charges that he did not have a commitment to equal justice for the poor, Askew observed, Wallace “noted that he had represented many poor people during the early years of his practice” and “spoke extensively about his community work, including building Habitat Homes and the work he and his family had done in Honduras” (as part of a biracial Christian conciliation group that he helped to form). But Askew credited the comments of critics who complained that Wallace had “not demonstrat[ed] a similar understanding of issues related to the poor in his own community in Mississippi.”

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

Under the committee’s procedures, Askew’s negative recommendation to the committee required that a second reviewer assess Wallace. But the second reviewer did not re-interview any of the witnesses that Askew had interviewed, and instead accepted and relied on her interview summaries. So much for the independent check that second review was supposed to provide. (Note also the stark contrast between this perfunctory second review and the scorched-earth review of Brett Kavanaugh’s entire career that Hillary Clinton’s longtime friend engineered out of what was supposed to be a supplemental review covering the one-year period since his previous ABA rating.)

The Senate Judiciary Committee initially set Wallace’s confirmation hearing for mid-July 2006. But when Stephen Tober failed to abide by his promise to provide the ABA’s testimony more than 48 hours in advance, the hearing got postponed and did not take place until September 26—mere weeks before the elections that would flip control of the Senate to Democrats and that would lead Wallace to withdraw his nomination.

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I don’t know Wallace, and I leave open the theoretical possibility that, notwithstanding what his many supporters said, he lacked the necessary judicial temperament. The thoroughly scandalous process by which the ABA reached that judgment, however, provides no basis for confidence in its assessment.

I do recall meeting Wallace once, sometime in 2007, I believe, when we were on a panel to discuss judicial confirmations. I introduced myself to him and passed along my condolences on his failed nomination and my dismay at how poorly the ABA had treated him. To my surprise, he shrugged and rather cheerfully replied, “That’s politics.”