WALLACE NOMINATION UPDATE
On September 26, the Senate Judiciary Committee held hearings on the nomination of Michael Wallace to U.S. Court of Appeals for the Fifth Circuit. Wallace's nomination has been controversial as he received a unanimous "not qualified" rating from the ABA Standing Committee on Federal Judiciary, the first such rating for an appellate court nominee since 1982. The evaluation, which is partly based upon interviews with anonymous witnesses, has been criticized as politically motivated. Now in private practice, Wallace had formerly clerked for the late Chief Justice William Rehnquist and had served as a counsel to Senator Trent Lott. Additionally, some critics of the Standing Committee speculated that Wallace received this rating because of his past contentious relationship with then ABA President Michael Greco, then Standing Committee chairman Stephen Tober and the Association over several Legal Services Corporation (LSC) issues (e.g., jurisdiction of LSC to launch class action litigation seeking broad injunctive relief, and the size and scope of the LSC budget). Wallace served as an LSC board member from 1984-90.
At the hearing, former members of the ABA panel defended their evaluation of Mr. Wallace. They stated that they did not account for "political considerations or personal ideology" but judged Wallace objectively. Their report did not question Wallace's professional competence or integrity, but instead based its low rating on concerns over his "judicial temperament." This assessment was primarily rooted in 69 interviews with anonymous lawyers and judges who had worked with Mr. Wallace. They also cited a supplemental evaluation which similarly resulted in a unanimous "not qualified" rating.
C. Timothy Hopkins, a former member of the Standing Committee, acknowledged that there was "no question" about Mr. Wallace's abilities as a trial and appellate lawyer. Rather, he said, "The question is whether he can make that transition… from being an outstanding trial lawyer to being a good, open-minded judge."
The former ABA Standing Committee member who actually conducted the Wallace investigation, Kim Askew, defended her report. She reiterated that her findings did not suspect Mr. Wallace's competence or integrity, but his judicial temperament. Ms. Askew explained, "In evaluating temperament, the committee considers a nominee's compassion, decisiveness, open-mindedness, courtesy, patience, freedom from bias and commitment to equal justice." She continued, "Over a third of the lawyers and judges that I spoke to raised issues regarding every element of temperament except decisiveness."
Several members of the Senate Judiciary Committee, especially Senators John Cornyn and Jeff Sessions, criticized the ABA's rating. First, they took issue with the method of the evaluation. Senator Cornyn asked Ms. Askew, "How in the world can you justify using anonymous sources?" Senator Sessions described the ABA Committee's use of judicial temperament as a judging tool "vague." They also wondered if Mr. Wallace's involvement in certain cases, especially when he represented Trent Lott and argued on behalf of Bob Jones University, may have biased certain witnesses against Mr. Wallace.
Cornyn also questioned the roles of Michael Greco, past ABA President, and Stephen Tober in the evaluation process. Mr. Greco had appointed a third of the Standing Committee on Federal Judiciary members and Mr. Tober, as committee chairman, would have reviewed both the initial and supplemental evaluations. Senator Cornyn declared, "Mr. Tober was reported to flamboyantly accuse Wallace of attempting to fashion a political bias litmus test and of having a hidden agenda."
Senator Ted Kennedy was the only Democrat to extensively question Wallace, himself. The Senate Judiciary Committee, however, did not vote whether or not to send the nomination to the Senate floor. Currently, there are no additional Senate Judiciary Committee hearings scheduled for this calendar year.
NEW MEMBERS OF THE STANDING COMMITTEE ON FEDERAL JUDICIARY
For more than 50 years, the instrument for the ABA's evaluation of federal judicial candidates has been the Standing Committee on the Federal Judiciary. This Committee evaluated and recommended to the President whether prospective nominees to the United States Supreme Court and the Circuit and District Courts are qualified for appointment. Prior to President George W. Bush, the Committee was consulted by every President concerning most federal judicial appointments since 1952. The United States Senate, through the Senate Judiciary Committee, has been provided with the Committee's evaluation of every federal judicial nomination since 1948.
According to the ABA:
The Committee's goal is to support and encourage the selection of the best-qualified persons for the federal judiciary. It restricts its evaluation to issues bearing on professional qualifications and does not consider a nominee's philosophy or ideology. The Committee's process is structured to achieve impartial evaluations of the integrity, professional competence and judicial temperament of nominees for the judiciary. The integrity and independence of the Committee and its procedures are essential to the effectiveness of its work. The ABA's Board of Governors, House of Delegates and Officers are not involved in any way in the work of the Committee. Its work is independent of all other activities of the ABA and is not affected by ABA policies other than those stated herein. Confidentiality in the Committee's evaluation procedures is a cornerstone of its effective operation.
The ABA Standing Committee on the Federal Judiciary consists of fifteen members, including an at-large member who serves as Chairman and one member from each of the 13 federal circuits, with the exception of the Ninth Circuit, for which there are two members. Each member is appointed to a staggered 3-year term by the President of the ABA, and, during their tenure, cannot contribute funds to political campaigns.
The following is a list of new members since The Federalist Society issued its last ABA Watch, along with some information on their professional and political backgrounds. Political contributions are noted simply in order to provide some information regarding political background. Based on public records, it appears that all of the current Committee members are in full compliance with the ABA's rule of refraining from such contribution activity while serving on the Committee.
Mary M. Boies
Mary M. Boies, the Second Circuit member on the ABA committee, is a partner at Boies & McInnis LLP, a law firm that specializes in commercial, securities and antitrust litigation. Under her leadership, Boies & McInnis has participated in antitrust litigation relating to the airline, insurance and pharmaceutical industries.
Earlier in her career, Ms. Boies was a Vice President with CBS, Inc., where she was responsible for the company's public disclosures for compliance with securities laws. She was also general counsel for the Civil Aeronautics Board, where she was responsible for major antitrust investigations relating to the travel agent industry, international airline pricing and practices, and airline mergers, acquisitions and stock transactions. During the Carter Administration, Ms. Boies served as Assistant Director of the White House Domestic Policy Staff; she was also Counsel to the United States Senate Commerce Committee.
Mary Boies is married to David Boies, also a notable attorney who aided Al Gore in the litigation associated with the 2000 Presidential election.
Over the years, Ms. Boies has been a large supporter of Democratic candidates. She did give one donation to a Republican congressional candidate over ten years ago, but the vast majority of her contributions have been to Democrats and Democratic groups. Ms. Boies has given well over $60,000 to politicians such as Ted Kennedy, John Kerry, Joseph Biden, and Charles Schumer and to organizations such as the Democratic Congressional Campaign Committee and Pro Choice Voter.
Edward B. Deutsch
Edward B. Deutsch, the Managing Partner of McElroy, Deutsch, Mulvaney & Carpenter, LLP, is the Third Circuit member. He is a Certified Civil Trial Attorney of New Jersey, a Fellow of the American College of Trial Lawyers, a Fellow of the International Society of Barristers, and a Fellow of The American Bar Foundation. He has substantial trial experience in state and federal courts in New Jersey as well as in other states and federal districts. He also has extensive experience counseling clients regarding insurance and matters relevant to the insurance industry.
Since 2002, Mr. Deutsch has give $2,000 to Republican Congressman Rodney Frelinghuysen and $1,000 to Democratic candidate Stephen Brozak.
José C. Feliciano
José C. Feliciano, the committee's Sixth Circuit member, is a partner with Baker Hostetler. Mr. Feliciano was elected to the American College of Trial Lawyers in 1995 and is a Life Member of the Judicial Conference, Eighth Judicial District, Cuyahoga County, Ohio. He served on the Board of Governors and House of Delegates of the ABA, is former Chair of the ABA Section of Dispute Resolution and former ABA representative to the National Conference of Commissioners on Uniform State Laws. Mr. Feliciano is a past President of the Cleveland Bar Association. Mr. Feliciano was appointed by President Reagan as a White House Fellow in 1984. Prior to the Fellowship, he was appointed by Senator (then Mayor) George Voinovich as the City of Cleveland's Chief Prosecuting lawyer (1980-84). He previously served as Cuyahoga County public defender (1978-80), defending criminal matters ranging from grand theft to murder.
Mr. Feliciano was honored by the ABA in 2005 with the "Spirit of Excellence" award given by their Commission on Racial and Ethnic Diversity in the Profession. Mr. Feliciano is the founder and Chairman of the Hispanic Roundtable. He is former Chairman of the Hispanic Leadership Development Program and founder of the Hispanic Community Forum, for which he also served as President. He was also a founder of the Ohio Hispanic Bar Association and served as its Vice President.
Mr. Feliciano has donated a total of $950 to Senator George Voinovich
Richard J. Gray
Richard J. Gray, the panel's Seventh Circuit representative, is a partner in Jenner & Block's Chicago office. He is a member of the Firm's Litigation Department and Intellectual Property and Insurance Litigation and Counseling Practices. He also serves on the Firm's Diversity Committee.
Mr. Gray regularly teaches trial practice at the National Institute for Trial Advocacy. He just completed a three-year term on the ABA's Legal Opportunity Scholarship Committee, which is responsible for selecting the ethnic and racial minority law students who will receive a scholarship. He also works to raise funds for those scholarships. Mr. Gray recently served on the ABA President's Advisory Committee on Diversity in the Profession. He also recently served as Co-Chair of the Section of Litigation's Diversity Plan Implementation Committee and Co-Chair of the Section's Judicial Intern Opportunity Program.
Mr. Gray donated $2,000 to John Kerry in 2004.
Allan J. Joseph
One of the committee's Ninth Circuit members, Allan J. Joseph is an attorney with Rogers Joseph O'Donnell. He is a founding shareholder, co-chair and the senior member of the firm's Government Contracts Practice Group. In 1975, he founded the Federal Publications course on Terminations, and he speaks each year at the Year-In-Review course on Terminations for Convenience. He is on the Advisory Board of BNA's Federal Contract Reporter.
He has been in leadership positions in the ABA for more than thirty years. From 1984 to 1992, Mr. Joseph was a Director and then President of the American Bar Retirement Association. From 1995 through 1998, he served on the ABA Board of Governors, and in 1997-98, he was appointed as Chair of the Board's Finance Committee. During 1977-78, he was Chair of the ABA Public Contract Law Section. He is a Fellow of the American Bar Foundation.
In August 2005, Mr. Joseph completed a three-year term as the ABA's Treasurer. In this role, he served on the ABA's Audit and Pension Committees, as well as on the Board of the ABA Endowment, the ABA Journal and the American Bar Retirement Association.
Leonard H. Gilbert
Leonard H. Gilbert, the Eleventh Circuit member, is a partner at Holland & Knight. He is a member of the firm's Banking and Finance Practice Group and is chair of the firms Creditor's Rights Team. Prior to joining Holland & Knight, Mr. Gilbert practiced for more than 35 years with the law firm of Carlton Fields and served as its President and Chairman.
Mr. Gilbert has served as president of The Florida Bar and chair of its Business Law and General Practice sections; chair of the Section of General Practice of the ABA; and a member of the UCC Committee, the Business Bankruptcy Committee, and the Commercial Financial Services Committee as well as chair of the Creditors' Rights Subcommittee, and a member of the Council of the Business Law Section of the ABA. He also serves as a member of the Fidelity and Surety Law Committee of the Section of Torts and Insurance Practice of the ABA and was a member of the ABA's Committee on Federal Judicial Improvements, the Committee on Judicial Selection, Tenure and Compensation, and the IOLTA Commission. He served for more than ten years in the ABA House of Delegates and is presently a member of the Council of the Senior Lawyers Division and the Standing Committee on Bar Activities and Services.
In 2003 Mr. Gilbert gave $250 to Betty Castor, a Democratic candidate for the U.S. Senate, in 1998 he gave $500 to Newt Gingrich, and in 1992 he gave $250 to Bob Graham.
MILITARY COMMISSIONS ACT 2006
The ABA vigorously opposed the Military Commissions Act which President Bush recently signed into law. Current ABA President Karen Mathis wrote letters to all members of the House and Senate against the Act. She expressed concerns that the Act did not provide habeas corpus for the enemy combatants and that the United States was not fulfilling its Geneva Convention obligations.
Mathis wrote, "The United States has long served as the model for the world of a civilized society that effectively blends security and human liberty. When we refuse to observe the international standards for the treatment of detainees which we were so instrumental in developing, we provide encouragement for others around the world to do the same."
In the letter to members of the Senate, Mathis concluded by advocating the adoption of the Specter-Leahy Amendment which would have given the detainees habeas corpus.
THE DEATH PENALTY IN FLORIDA
Under the auspices of the ABA Death Penalty Moratorium Implementation Project, housed in the ABA Section of Individual Rights and Responsibilities, a team of lawyers unanimously agreed that the state of Florida "fails to comply or is only in partial compliance with many of the protocols developed by the ABA to assess death penalty systems." The report's criticisms of the state's system of capital punishment ranged from not giving enough weight to serious mental disability, the existence of racial disparities in capital sentencing, and a high level of secrecy during the clemency process. The recommendations have not been presented to the ABA House of Delegates and therefore do not constitute official ABA policy.