Published on January 10, 2007
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 (see here and here), 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 Wallace 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, Marna 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 (whose record I discussed more fully here) 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.
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 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.