Eminent Domain

After the American Bar Association gave judicial nominee Michael Wallace a unanimously unqualified rating, many people had many questions. Why would someone with Wallace's resume and experience get such a horrible rating? How did the ABA decide this? Why has the ABA been so quiet about their reasons? Well, the ABA has finally sent out their formal statement about the nominee, and Ed Whelan at Bench Memos has it.

Whelan's analysis is spread out over a handful of posts. He doesn't see any good reason for the poor rating. Here are a few highlights. First, let's look at who is involved here...

Moreover, according to a letter from one witness in support of the Wallace nomination, current ABA president Michael Greco, at a 1989 ABA meeting, made a public attack on Wallace that was "so vicious and personal" that it offended some of the members of the ABA House of Delegates. This witness thinks that Tober also took part in the vicious attack.

Tober is Stephen Tober, the ABA committee chairman. Next...

As for Fifth Circuit member Kim J. Askew, who conducted the lead investigation: Askew serves on the Board of Trustees of the Lawyers' Committee on Civil Rights, which occupies the hard Left on matters of race and has fervently opposed leading nominees of the Bush Administration. In January 2006, for example, the Lawyers' Committee issued a statement opposing Samuel Alito's nomination to the Supreme Court. In September 2005, the Lawyers' Committee stated that it could not support John Roberts' nomination as Chief Justice.

Then there's this...

Whether or not the second investigator, Thomas Hayward, is biased against Wallace is rendered moot by the fact that Hayward did not re-interview any of the individuals interviewed by Askew but instead accepted, and relied on, her interview summaries.

Don't strain yourself working too hard.

Whelan makes this point...

I can't help noting that ABA president Michael Greco has stated only that he "did not express any opinion to anyone [about the Wallace nomination] during the evaluation process." (Emphasis added.) It would be worth inquiring whether he expressed any opinion to anyone about the Wallace nomination between the time the nomination was announced and the time the evaluation process started.

Someone should ask Greco about that. I'm eager to hear his response.

What reasons did the ABA give for the poor rating? This is the explanation...

According to Askew, her investigation revealed that Wallace "has the highest professional competence" and "possesses the integrity to serve on the bench," but lacks the necessary judicial temperament.

Ah, so the judicial temperament criterion is the killer. I guess I shouldn't be surprised. It's hard to prove that someone has the proper temperament, because it is so insanely subjective. Whelan goes on to criticize the depth of Askew's investigation. I found this funny...

As I understand it, Wallace travels to Honduras every summer, as part of a biracial conciliation group, to build homes for poor Hondurans. But Askew closes her section on "commitment to equal justice" by crediting the comments of critics who, while praising that work in Honduras, complain that Wallace has "not demonstrat[ed] a similar understanding of issues related to the poor in his own community in Mississippi"!

Wallace cares about the wrong poor people!

Whelan goes on to note that Askew violated the ABA's procedures, failing to give Wallace the details about some of the attacks against him. He can't even mount a proper defense of himself then. Unfortunately for Wallace, the ABA has run out the clock on his nomination. The Senate will not be taking up any more "controversial" judicial nominees before the elections. We may be dealing with a very different Senate next year, and Wallace will have to face them.