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Ms. Roberta Liebenberg
Chair of the Standing Committee on the Federal Judiciary
I. STATEMENT OF ROBERTA D. LIEBENBERG
The Standing Committee considers and evaluates only the professional qualifications of a nominee -- his or her professional competence, integrity and judicial temperament. A nominee's philosophy or ideology is not taken into account. Our processes and procedures have been carefully structured and modified over the years to produce a fair, thorough and objective peer evaluation of each nominee. A number of factors are evaluated, including intellectual capacity, judgment, writing and analytical ability, knowledge of the law, breadth of professional experience, courtroom experience, character, integrity, industry, diligence, open-mindedness, compassion, decisiveness, courtesy, patience, freedom from bias, commitment to equal justice under the law and general reputation in the legal community.
After Mr. Wallace was nominated by President Bush in February, 2006, Ms. Askew was assigned to conduct the evaluation of his professional qualifications. Ms. Askew was the Fifth Circuit representative on the 2005-06 Standing Committee and remains in that position on the current 2006-07 Committee. The evaluation of Mr. Wallace was conducted in accordance with the normal practices and procedures of the Standing Committee. The investigator starts his or her evaluation by reviewing the nominee's responses to the public portion of the Senate Judiciary Committee questionnaire. These responses provide the opportunity for the nominee to set forth his or her qualifications, including professional experience, important cases handled, significant legal writings and references. The investigator makes extensive use of the questionnaire responses during the course of the evaluation. In addition, the investigator conducts research about the nominee in both the print and electronic media, and identifies and examines the legal and non-legal publications, speeches and other writings by and about the nominee. The investigator also personally conducts extensive confidential interviews with individuals who have information regarding the integrity, professional competence and judicial temperament of the nominee, including federal and state judges, practicing lawyers in both private and government service, law school professors and deans, legal services and public interest lawyers, representatives of professional legal organizations, community leaders, and others who are in a position to evaluate the nominee's professional qualifications. This process provides a unique "peer review" aspect to our evaluation.
Interviews are conducted under an assurance of confidentiality. It bears emphasis that the Committee's ability to secure candid and complete assessments of a nominee's professional qualifications from the judges, lawyers, and others who are interviewed concerning the nominee is dependent upon the maintenance of strict confidentiality.
However, while confidentiality is the linchpin of our evaluation procedures, we are sensitive to the critical need to be fair to the nominee with respect to any adverse comments that are received during the course of the evaluation process. If adverse comments are made about the nominee, the investigator will disclose to the nominee during the personal interview as much of the underlying basis for the adverse comments as reasonably possible, consistent with the promise of confidentiality made to interviewees. During the personal interview, the nominee is afforded a full opportunity to rebut the adverse comments and provide any additional information relevant to them. The investigator will then follow up on any such information provided by the nominee. If the nominee does not have the opportunity to rebut certain adverse comments because they cannot be disclosed without breaching confidentiality, the investigator will not use those comments in writing the formal Report and the Committee will not consider them in its evaluation.
Ms. Askew conducted a three-hour interview of Mr. Wallace on March 28, 2006. During that interview, she discussed with him the adverse comments that had been made during her prior interviews of judges, attorneys and other individuals with knowledge of his professional qualifications, and she gave him the opportunity to address and refute those comments.
Under Standing Committee procedures, a second investigator may be appointed when it appears at any time during the evaluation process that a nominee may receive a "Not Qualified" rating, and that is what occurred here. Upon the completion of her informal report, and before it was circulated to members of the Standing Committee, Ms. Askew advised the then-Chair of the Committee that she would be recommending a "Not Qualified" rating for this nominee. As a result, Thomas Z. Hayward, Jr., of Chicago, a former Chair of the Standing Committee, was asked to conduct a second evaluation. He interviewed additional third parties, and re-interviewed the nominee on May 2, 2006. Thereafter, based upon his own evaluation, Mr. Hayward also recommended a "Not Qualified" rating for this nominee.
Once the second evaluation concluded, both the formal report completed by Ms. Askew and the second report completed by Mr. Hayward were forwarded simultaneously to all members of the Standing Committee. At the same time, members of the Standing Committee also received background materials relating to a 1992 pre-nomination evaluation by the Standing Committee of Mr. Wallace.
In May, 2006, after carefully considering the Reports prepared by Ms. Askew and Mr. Hayward, as well as the materials pertaining to the evaluation conducted in 1992, each of the fourteen voting members of the Standing Committee independently conveyed their votes to the then-Chair. Mr. Hayward, who was not a member of the Committee in May 2006, did not vote, nor did the then-Chair vote. The fourteen voting members of the Standing Committee voted unanimously that Mr. Wallace was "Not Qualified" for a position on the Fifth Circuit Court of Appeals.
The Standing Committee's normal practice is to conduct a supplemental evaluation of every nominee whose nomination has been withdrawn or returned and subsequently re-submitted by the President. Consistent with that standard procedure, the Committee has conducted a supplemental evaluation of Mr. Wallace, whose nomination was returned by the Senate on August 3, 2006, and re-submitted by the President on September 5, 2006. The supplemental evaluation was conducted by two highly experienced former Committee members, Pamela A. Bresnahan of Washington, D.C. and C. Timothy Hopkins of Idaho Falls, Idaho. Two investigators were appointed because of the need to conduct the supplemental evaluation on an expedited basis.
Present today are Ms. Askew and Ms. Bresnahan, who will testify regarding the evaluations and the reasons for the Standing Committee's rating of the nominee as "Not Qualified." Mr. Hayward and Mr. Hopkins are also present if the Committee has any questions regarding the evaluations.
After careful review of the supplemental evaluation by Ms. Bresnahan and Mr. Hopkins, and consideration of all materials concerning the prior Standing Committee evaluations of Mr. Wallace's professional qualifications, it is the unanimous opinion of the Standing Committee that he is "Not Qualified" for a position on the United States Court of Appeals for the Fifth Circuit.
1. The Investigation of Mr. Wallace
I conducted my investigation into the professional qualifications of Michael B. Wallace in March and early April of this year in the same manner all investigations of the Standing Committee are conducted. As outlined in the Backgrounder, the Standing Committee investigates only the professional competence, integrity, and judicial temperament of Mr. Wallace. Political considerations or personal ideology were not considered. My investigation began with a detailed analysis of Mr. Wallace's responses to the Personal Data Questionnaire in which he provided substantial information on his professional background and experience and writing samples. From this questionnaire, I identified attorneys and judges Mr. Wallace considered significant in his background.
As part of my preliminary investigation, I conducted confidential telephone interviews with 69 lawyers, including 26 judges. These interviews covered the depth and breadth of the legal community. I interviewed law professors and deans, government officials, lawyers who practiced in large and small firms, solo practitioners, representatives of various bar organizations, and representatives of the legal services and public interest communities. I interviewed judges on the Fifth Circuit Court of Appeals, federal district courts, federal magistrate judges, and judges on every state court in Mississippi in which Mr. Wallace had practiced.
During each interview, I asked detailed questions regarding the person's knowledge of Mr. Wallace's professional competence, judicial temperament, and integrity. Often, I asked open-ended questions, seeking any information that might bear on the professional qualifications of Mr. Wallace to serve on the court. If an interviewee raised concerns or provided adverse information regarding any of the three criteria vetted by the Standing Committee, I asked follow-up questions designed to elicit facts supporting the comments, including information on the names of cases, briefs or written materials, or the names of other persons who could corroborate any adverse concerns expressed.
Many of the interviews involving Mr. Wallace were quite lengthy; some lasting as long as 45 minutes. Some interviews were long because the Backgrounder requires that we fully explore any adverse comments so they can be discussed with the nominee. Interviews with persons who made favorable comments were sometimes lengthy because these individuals discussed unfavorable issues they had "read" or "heard" about regarding Mr. Wallace or they tried to anticipate issues they thought others might raise. If lawyers in a case gave conflicting views on Mr. Wallace's temperament, I conducted additional interviews in an attempt to reconcile, if possible, the differing points of view. During these interviews, lawyers and judges frequently asked for assurances of confidentiality and repeatedly requested that the Standing Committee not make any public statements that would reveal their identity. Some lawyers and judges were so concerned about confidentiality that often they would not talk with me during my initial call and spoke to me only after verifying that I was a member of the Standing Committee.
2. Adverse Comments on Judicial Temperament
This was a difficult investigation because of the conflicting and strongly held views of lawyers and judges on one aspect of the qualifications we review - Mr. Wallace's judicial temperament. On the one hand, many of those interviewed believe that Mr. Wallace possesses the professional competence and integrity that places him at the top of the profession. Many others, including some of those who believe him well qualified on the other criteria, are of the unwavering view that he lacks the temperament required for service on a federal court.
a. Commitment to Equal Justice
One of the negative comments expressed over and over, and often with great emotion and concern for the system, was that Mr. Wallace had not shown a commitment to equal justice under the law. Lawyers and judges stated that Mr. Wallace did not understand or care about issues central to the lives of the poor, minorities, the marginalized, the have-nots, and those who do not share his view of the world. These concerns were most often discussed in the context of Voting Rights Act cases and other issues involving constitutional rights.
As further evidence of the manner in which Mr. Wallace litigated the case and as a basis for their assertions that he lacks temperament, several lawyers made me aware of some of the additional findings made by the court in the subsequent opinion on attorneys' fees in Jordan v. Allian, 619 F. Supp. 98 (N.D. Miss 1985). There, the court expressly found that "these defendants, and particularly the Republican Party, [represented by Mr. Wallace] crossed the line separating hard fought litigation from needless multiplication of proceedings at great waste of both the courts and the parties' time and resources." Id. at 111.
Lawyers raised concerns regarding the positions advanced by Mr. Wallace in the redistricting area in the Branch cases, litigated in early 2000. Mr. Wallace argued for the creation of at-large districts for the election of Mississippi Congressional representatives, a position that lawyers said would have eliminated the only majority African-American single-member district in Mississippi. These lawyers also pointed out that many other states had already implemented single-member districts. Lawyers stated that the United States Supreme Court rejected the position advanced by Mr. Wallace in Branch v. Smith, 538 U.S. 254 (2003) and allowed single-member districts in Mississippi.
Lawyers had concerns regarding the manner in which Mr. Wallace litigated the cases believing that he took "partisan" positions that ignored existing precedent under the Voting Rights Act. They also believed that he acted not merely as an advocate, but advanced his own personal position and "agenda" without regard for the impact on African- American voters. These lawyers stated that they understood the role of lawyers as advocate, but believed that Mr. Wallace's positions went far beyond that of an advocate.
Lawyers other than those who involved in the civil rights litigation mentioned above based their concerns regarding Mr. Wallace's lack of commitment to equal justice on the overall dealings and interactions they have had with him over a period of years. Some had heard him give lectures on issues such as the Voting Rights Act and other constitutional issues and recounted follow-up personal conversations with him, which led them to question his commitment to equal justice. He is said to have a "blind-spot" with respect to certain issues as they relate to the certain issues affecting minorities. Several people commented that their concerns related to the "minority view" covered not just racial and ethnic minorities, but the manner in which Mr. Wallace reacted to any minority point of view.
? He has "an instinctive contempt for the socially weak," including "the poor and minorities."
? He does not "like poor people" or anyone "not just like him."
? "He can't see the plight of those who are socially advantaged."
? He would not only "not be open to issues involving minority rights," he would be "hostile" to them.
? "It will be like 1965, not 2006."
These are the words used by lawyers and judges who know Mr. Wallace; they have been involved in cases with him, and are active in the bar and community in which Mr. Wallace lives and works. The statements came from a cross section of the legal community and not just minority lawyers or lawyers who had been involved in civil rights or other constitutional cases. As I noted earlier, judges raised some of these concerns. They repeatedly focused on the fact that the Fifth Circuit may have more poor, more marginalized, and more minority individuals than any other circuit in the country. They were convinced that Mr. Wallace did not understand the plight and issues of so many of the people he would have to serve as a judge.
Lawyers raised concerns regarding Mr. Wallace's open-mindedness and questioned whether he would be a fair judge. They emphasized the importance of fairness in the courts and the critical role of judges in maintaining fairness. Some lawyers believed Mr. Wallace would be fair as a judge and would "call it as he sees it." Other persons interviewed described the nominee as "narrow-minded in his views," "lacking in tolerance," "entrenched in his views," "intolerant," "insensitive," "high-handed - not willing to yield to logic or the facts," "rigid," "inflexible," "overly-opinionated," "one-dimensioned," "locked into a point of view - his," and not open to the positions of others.
Some expressed concerns over whether Mr. Wallace would be able to transition from being an advocate to being a judge. They noted that Mr. Wallace only sees his point of view, and summarily rejects the views of others in a manner that suggests he has not fully listened to them. He is said to exhibit "hostility" to the views of others, especially if he disagrees with them. He has taken "harsh and unnecessary positions" in litigation that "may have resulted in undue burdens to the courts." While I cannot reveal the details of the cases, lawyers gave me specific examples of this in several recent high profile cases handled by Mr. Wallace.
Others stated a belief that Mr. Wallace would prejudge the outcome of cases "based on personal beliefs and not the law." He would "get the results he wants in a case regardless of law or facts." Another expressed the belief that Mr. Wallace would, based on his fast-held views, (1) make his mind ahead of time or (2) be locked into a particular view and simply not hear the other side.
Mr. Wallace rejected these assertions during our interview. He believes that he understands what it is to judge and to be fair in decision-making. He stated that litigants deserve certainty. The interview did not assuage the serious concerns that interviewees had raised.
A substantial number of lawyers and judges stated that Mr. Wallace has taken positions that suggest he "may not follow the law." They explicitly stated that he "simply" or "just won't follow the law. Some judges even suggested that Mr. Wallace might not follow precedent or could "ignore the law if he disagreed with it" or if it suited his "personal agenda." A long-time judge noted, "The law will not get in his way." Many said his positions are sometimes "extreme." "You either agree with him or capitulate." "Mr. Wallace's point of view prevails or else." Some raised concerns that Mr. Wallace would follow his own interpretation of "what the law should be" rather than "what the law is." Many were concerned that Mr. Wallace would use his considerable skills as a legal writer, thinker, researcher, and skillful advocate to change or modify the law to reflect his personal views rather than rely upon and apply existing precedent. Lawyers and judges noted cases in which Mr. Wallace had filed pleadings and taken positions that certainly did little or nothing to advance the merits of the case and suggested that he was deviating from existing precedent in some of his positions.
Mr. Wallace rejects the assertions of those who believe he is not free from bias and will not follow the law. He stated that he understands what it means to be an appellate judge. During the interview, he wanted detailed examples of the cases and types of statements made as well as the identity of persons making such statements. Beyond the statements that I have expressed here, I could not provide Mr. Wallace with any further details on the identities of lawyers or the names of cases without violating the confidentiality requirements upon which the interviewees relied.
Lawyers also criticized Mr. Wallace for failing to show common courtesy and respect to other lawyers and litigants. Some of the comments arose in the context of his service on the national Legal Services Board in the late 1980s and early 1990s. Lawyers who had attended Board meetings and watched the interaction between Mr. Wallace and members of the public and the Legal Services staff described him as treating staff and lawyers "like they were dirt on the floor." Many who had attended these meetings said he was "nasty," "dismissive," "abusive," "mean," "rude," "extremely arrogant," "egotistical," "condescending" and "extraordinarily impolite" to those who appeared before the Legal Services Board.
Concerns regarding Mr. Wallace's lack of common courtesy and respect continue to today. Persons who have worked with him well after he ended his service on the Legal Services Board raise similar issues. Lawyers and judges described him as "loud," "aggressive," "discourteous," "abrasive," "arrogant" and "condescending." Some lawyers who have known him for a long period of time describe him presently as a man who has become "hardened in his convictions" rather than becoming "more open" to the issues of those around him. Lawyers stated that Mr. Wallace was not patient and often did not listen to the arguments of others, and that he could be "sarcastic" and "strident" in his approach to dealing with issues and in his conversations with fellow lawyers. They stated their belief that Mr. Wallace would engage in this same behavior as a judge. If he did so, they questioned whether litigants would obtain a fair hearing and resolution of their issues and whether the essential dignity of the court would be maintained.
A large number of minority lawyers stated that Mr. Wallace has on occasion been particularly disrespectful to them and often did not treat them as equals or peers in the profession. They stated that he acted with an air of "superiority" and in a manner that was "demeaning" and "condescending" to them while he did not display this behavior to other lawyers in the cases on which they worked. Some non-minority lawyers who questioned Mr. Wallace's temperament stated that he "seemed" to treat non-minority lawyers "as peers" while his "demeanor, reactions and interactions" with minority lawyers suggested he did not treat these lawyers as equals. And some minority lawyers, especially those who had been actively involved in litigating civil rights cases, stated that Mr. Wallace often did not respect their views, - it was as if the arguments of minority lawyers "were not as worthy of being in court" and did not "carry the same weight" as other lawyers. We are certainly aware of comments from other prominent minority attorneys who do not share this view, but on balance, the Committee could not discount the number of lawyers who raised this concern, the nature of their comments or the expressed intensity of beliefs of these lawyers concerning Mr. Wallace's interactions with them.
Mr. Wallace asked for further details regarding all adverse comments, including the identity of those who made the comments and the "facts" or "proof" given by persons in support of their statements. I provided Mr. Wallace with as much information as I could without violating the confidential nature of this process that precluded me from providing such information without the authorization of the lawyers.
1. Investigation of Mr. Wallace
Because Kim Askew had reached the preliminary conclusion that Mr. Wallace should be rated "Not Qualified" by reason that he lacks the appropriate judicial temperament, the Chair appointed me to undertake a supplemental investigation. The purpose of the supplemental investigation was to assure fairness to Mr. Wallace in light of Ms. Askew's negative assessment based on her extensive investigation. The Backgrounder provided that the second investigator may re-interview the nominee and conduct whatever supplemental inquiries he or she feels appropriate.
One cannot overlook the many comments received by Ms. Askew and myself describing the nominee as narrow-minded in his views, rigid, hostile to, and not open to the position of others. One distinguished interviewee with whom I spoke commented that with Mr. Wallace, it will be his "way or the highway."
b. Freedom from Bias
After considering the reports by Ms. Askew and Mr. Hayward, the 14 voting members of the Standing Committee unanimously rated Mr. Wallace "Not Qualified" for appointment to the United States Court of Appeals for the Fifth Circuit. The Standing Committee is comprised of highly accomplished attorneys of diverse backgrounds and practices. Each member takes very seriously his or her responsibility to conduct an objective evaluation of the professional qualifications of each judicial nominee. Each of the members of the Committee applied his or her independent judgment in voting on the rating to be given to the nominee.
In conducting this supplemental evaluation, we reviewed the responses by Mr. Wallace to the public portions of the Senate Judiciary Committee Personal Data Questionnaire ("PDQ"). In addition, we reviewed the extensive materials pertaining to the prior evaluations of Mr. Wallace's professional qualifications by the Standing Committee in the Spring of 2006 and 1992. We also read several of the reported decisions cited by Mr. Wallace in his PDQ, and other decisions where he was listed as counsel.
Although the supplemental evaluation was conducted on an expedited basis, we sought to interview as many people as possible. We contacted judges and lawyers from a broad cross-section of the legal community. We re-interviewed 15 people who were previously interviewed by Ms. Askew or Mr. Hayward in Spring 2006 and interviewed 11 additional people who had not been previously interviewed. Some of the people we interviewed had been mentioned to us during one or more of our interviews, (including our interview with the nominee), as possible sources of information regarding Mr. Wallace's professional qualifications. On September 18, 2006, we interviewed Mr. Wallace for two hours at his office in Jackson, Mississippi.
It should be noted that we refrained from including in our Report to the Standing Committee certain of the adverse comments we had received about Mr. Wallace, because disclosure of the underlying basis of these comments to Mr. Wallace would have necessarily compromised the confidentiality demanded by that interviewee. We did not rely on those comments in making our "Not Qualified" recommendation to the Standing Committee, nor were these comments referenced in our Report.
Notwithstanding Mr. Wallace's integrity and legal ability, the concerns about his temperament and suitability for the bench caused us to submit a recommendation of "Not Qualified" to the Standing Committee. The possession of judicial temperament is of critical importance to ensuring that litigants, their attorney's and the public have confidence in the fairness of the justice system.
After careful consideration of the supplemental report of Pamela A. Bresnahan and C. Timothy Hopkins, as well as the materials pertaining to the previous evaluations of the nominee, the fourteen voting members of the Standing Committee unanimously rated Mr. Wallace "Not Qualified" for appointment to the United States Court of Appeals for the Fifth Circuit.
Mr. Michael Wallace
The Honorable Richard Blumenthal
Pamela A. Bresnahan, Esq.
Mr. Robert B. McDuff
Mr. Thomas Hayward
Mr. C. Timothy Hopkins
Ms. Kim Askew
Ms. Doreen Dodson
The Honorable Reuben Anderson
Mr. W. Scott Welch
Ms. Carroll Rhodes
Ms. Roberta Liebenberg
Ms. Vanessa Lynne Bryant