Michael Wallace (lawyer) - Fifth Circuit Nomination Under Bush

Fifth Circuit Nomination Under Bush

On February 8, 2006, President George W. Bush nominated Mr. Wallace to a seat on the United States Court of Appeals for the Fifth Circuit vacated by Judge Henry Anthony Politz, who had taken senior status in 1999. From May 2001 until December 2004, federal district court judge Charles W. Pickering had been the nominee for the seat, but Senate Democrats and liberal groups like People for the American Way had been successful in obstructing his confirmation. Frustrated with this obstruction, President Bush recess-appointed Judge Pickering to the Fifth Circuit in January 2004. Unable to break a Democrat filibuster, Pickering retired at the end of 2004. Wallace was nominated to replace Pickering.

Mr. Wallace was immediately opposed by the Senate Democrats and the same liberal groups that had previously opposed Pickering. They charged that Mr. Wallace had tried to undermine meaningful enforcement of the U.S. civil rights laws. They said that he had fought unsuccessfully against restoring important, widely supported voting rights protections, continued to maintain that such protections did not exist long after they were enacted, stopped legal services providers from bringing cases under the Voting Rights Act, and opposed efforts in 2006 to enforce the Voting Rights Act.

Senate Democrats and liberal groups were especially upset with Mr. Wallace's actions as a member of the Legal Services Corporation. As the chair of the organization, Wallace had received significant criticism from Democrats and a few moderate Republicans for seeking to undermine the agency. He authorized the use of LSC funds to lobby Congress for cuts in LSC’s budget and to pay lawyers to prepare a memo arguing for LSC’s abolition. Republican Senator Warren Rudman characterized Wallace's appeal to Congress as "absolutely bad faith."

Although it determined that Wallace “has the highest professional competence” and “possesses the integrity to serve on the bench,” the American Bar Association's judicial-evaluations committee gave him a "not qualified" rating, finding him lacking on the highly malleable element of “judicial temperament.” Senate Republicans blamed the "not qualified" rating on the liberal biases of the American Bar Association's leadership and judicial-evaluations committee. They pointed 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. In the course of strikingly intemperate 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 S. 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 — who according to the Republicans had her own biases and conflict of interest concerning Wallace — 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, 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. Republicans felt that Tober plainly should have recused himself from the Wallace evaluation.

In December 2006, Wallace announced that he was withdrawing his name from consideration for the Fifth Circuit. Only in September 2007, after a delay of six years, was the seat to which Pickering and Wallace had been nominated filled with a Bush nominee. Leslie H. Southwick, another controversial nominee, was confirmed almost entirely because of the support of California's Democratic senator, Dianne Feinstein.