Theodore Olson Assists ABA's Attack on Fifth Circuit Nominee Michael Wallace
My and Ted's not-so-excellent adventure
To my great surprise, my exposure of the American Bar Association’s scandalous review of Fifth Circuit nominee Michael B. Wallace put me crosswise with a titan in the conservative legal world.
At the Federalist Society gala in November 2006, I wandered over to say hello to my old boss Justice Scalia. Seated at his table was Ted Olson, who successfully argued Bush v. Gore and who was back in private practice after serving as Solicitor General during George W. Bush’s first term.
“Ed’s the best!,” Olson raved to Scalia, as he greeted me warmly and told Scalia how much he enjoyed my blogging on legal issues.
But just four evenings later, Olson tried to strong-arm me to withdraw my criticism of the false testimony that American Bar Association official Roberta Liebenberg presented at Wallace’s confirmation hearing in September 2006.
Olson’s intimidation didn’t succeed. As I documented in an essay, my careful back-and-forth with him thoroughly confirmed my judgment that Liebenberg had descended to “flat-out perjury” in her effort to defend the ABA’s negative rating of Wallace.
***
Roberta Liebenberg succeeded Stephen Tober as chair of the ABA’s judicial-evaluations committee in August 2006, and in that capacity she defended the committee’s “Not Qualified” rating of Wallace at his September 26 hearing. Tober had had a major run-in with Wallace in 1987 when Wallace served on the board of the Legal Services Corporation. In her testimony, Liebenberg repeatedly contended that it did not matter that Tober had not recused himself from the committee’s evaluation of Wallace because, she claimed, he simply had had no role at all in the committee’s evaluation:
“This is not a process where Mr. Tober had any role whatsoever in the evaluation or the vote.”
“it is important to emphasize that Mr. Tober did not participate in any way in the rating” of Wallace
Tober “did not participate in either the evaluation or the rating”
“neither Mr. Tober, nor Mr. Greco participated in the evaluation or the rating of Mr. Wallace”
“I would just, again, add that Mr. Tober did not participate in the evaluation”
As I watched the livestream of the hearing, I blogged my amazement that Liebenberg had “just told—and repeated several times—a flat-out lie.” As I observed:
Yes, Tober did not cast a vote, but, consistent with the ABA’s express procedures, he reviewed the draft report that the Fifth Circuit member, Kim Askew, prepared and he had to be “satisfied with the quality and thoroughness of the investigation” before the formal report would be circulated to the other committee members. He also selected the person who conducted the second review of Wallace.
***
Some seven weeks later—the morning after the Federalist Society gala—in the course of a blog post criticizing a New York Times editorial, I recited the ABA’s unfair treatment of Wallace, including the “plainly false testimony” by the “ABA’s new chair of its judicial evaluations committee.” I linked to my September 26 post, and I stated my intention to present “a more elaborate prima facie case of perjury by that chair soon.”
Three days later, I received an email from one of Ted Olson’s junior associates:
Ted Olson, who is traveling today, asked me to transmit an e-mail on his behalf regarding your November 17 Bench Memos posting … on National Review Online. Ted represents the ABA Standing Committee on Federal Judiciary, and he disagrees with your characterization of Ms. Liebenberg's September 26 testimony before the Senate Judiciary Committee. Ted personally believes that Ms. Liebenberg’s testimony was thorough and truthful, and that it can in no way be characterized as perjurious. Indeed, Ted believes that your statement that Ms. Liebenberg presented false testimony to the Committee may constitute libel.
Ted requests that you remove these factually inaccurate statements from National Review Online and that you refrain from disseminating any further statements about Ms. Liebenberg’s testimony, including the “prima facie case of perjury” referenced in the November 17 posting.
Ted looks forward to your prompt compliance with these requests.
Both the substance and the tone of the email surprised me. In the post that Olson was objecting to, I had linked to my earlier post in which I spelled out why Liebenberg’s testimony was plainly false. Olson did not engage with my points at all but instead offered empty assertions. The stiffness was also odd, and not just because of Olson’s extravagant praise of me to Justice Scalia. In my previous capacity as principal deputy in the Department of Justice’s Office of Legal Counsel, I had developed an amicable relationship with Olson, one that might have deterred the sort of performative posturing that he was engaging in.
After carefully reviewing the matter, I informed Olson that “I continue to believe that my statements on this important matter of public concern are accurate,” and I invited him to “flesh out the entirely conclusory assertions” in his email.
Olson responded a few days later. In his email, he acknowledged that Tober had “select[ed] the reviewers, and had responsibility to review the process to insure that it was thorough.” He also conceded that Tober had “played [a] role” in the process:
You might criticize the fact that he played any role at all given the prior experience he had with Mike Wallace, but the unanimous evaluation was not a product of his direct input.
But despite effectively conceding that Liebenberg’s testimony was false, Olson labeled my criticism of her “utterly unjustified and unfair.”
I consulted with a handful of legal experts to make sure that I wasn’t misperceiving things. All of them agreed that my characterization of Liebenberg’s testimony was well founded and that Olson’s suggestion that I might have libeled her was ridiculous.
The threat that I might face a frivolous lawsuit was still something I had to be concerned about. I was busy running a think tank and didn’t want to waste time and money defending a lawsuit. So in order to establish even more clearly that I was in the right, I sent Olson twelve factual propositions that I believed to be true, and I invited comments on them from him or from the ABA committee. Olson provided Liebenberg’s responses. I set them forth in full in the Appendix to my essay, along with my replies. As I concluded in that essay:
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 January 2007, I emailed my essay titled “Not Credible ‘Whatsoever’” to my distribution list, which included Olson. In my cover note, I explained that the essay “document[s] the incredible testimony given under oath—flat-out perjury, in my judgment—at Fifth Circuit nominee Mike Wallace’s confirmation hearing by the chair of the ABA’s judicial-evaluations committee, Philadelphia lawyer Roberta Liebenberg.” I also noted that the essay included “a lengthy appendix setting forth Liebenberg’s defense of her statements.”
I can’t say that I was expecting Olson to reply, “Ed, you’re the best!” But I was bemused that he would continue his blustering. Here’s the response that I received from him two days later:
Very, very disappointing Ed. I’m afraid that I’m going to have to send you a letter.
In context, he meant me to understand that the letter that he was supposedly going to send would threaten a lawsuit if I did not immediately retract my criticisms.
Somehow that letter never arrived.
Months later, Olson came to my office to try to persuade me to join him in supporting Rudy Giuliani—his former Department of Justice colleague in the Reagan administration—for president in the 2008 election. I refrained from greeting him with, “Hey, you promised to write me!”