Wallace and Luttig:

I am really quite surprised by the ABA's rating of Michael Wallace for the 5th Circuit. During my time teaching at Mississippi College School of Law I had the opportunity to gain some degree of acquaintance with Mike through various Federalist Society activities and he always impressed me as smart, even-tempered, and with a "judicial demeanor." His resume--Rehnquist, Phelps Dunbar, etc.--speaks for itself. In fact, it was almost 10 years ago that I taught in Mississippi, and during that time it was simply assumed that Wallace would inevitably ascend to the 5th Circuit when there was an opening and he was ready to do so. In my experience, even at that time he was widely regarded as one of Mississippi's leading attorneys. The whole imbroglio with Judge Pickering set him back a few years, but rarely have I encountered such an inevitable Court of Appeals nominee during my career.

On that basis, I am baffled by what the ABA could have found to rate him unqualified. Is there some public pronouncement that provides a rationale for their decision? Can anyone shed any light on what the ABA was thinking? I haven't been able to find anything that states the basis for the ABA's decision.

As for Luttig, I'm not as surprised by that news as others seem to be. Others, such as Orin, are and several of his commenters indicate that they don't really understand what is going on here. Judge Luttig too is an acquaintance/friend and one who I hold in the highest regard as a man and a judge. I haven't talked to him about his decision, though, so like other bloggers, I'm simply speculating. I suspect that disappointment over the Supreme Court certainly has something to do with it and does boredom, as others have speculated. I was once talking to a fellow law professor about the life of a judge and she said, "Could you imagine red brief-blue brief for the rest of your life?"

It has also been my impression that being a VP-GC of a major corporation would be an extremely interesting and exciting job. Less so after SOX, I suspect, but still quite interesting. Off the top of my head, I can't think of anyone who I know who has left a law partnership to become a GC of a major corporation and has gone back. In addition, I know that several of Judge Luttig's friends and contemporaries also have moved into GC positions and have prospered both financially and professionally in recent years. The range of business, legal, and management issues that such a job brings really seems like quite an interesting mix with substantial perks. In that sense, his decision is actually less puzzling to me than was Michael Chertoff's decision to leave the Third Circuit to go to DHS or even Ken Starr's decision long ago to leave the DC Circuit to become Solicitor General, both of which are/were temporary positions.

Luttig will be back "in the arena" of making business and legal decisions too, which is something that many people enjoy and find that they miss in a more cloistered atmosphere. One of my senior colleagues at Alston & Bird was one of the nation's leading bankruptcy attorneys and had been offered a teaching position both at the outset of his career and later at the end of his career (just around the time I left practice as a junior associate to enter teaching). At both stages of his career, he passed. So when I told him that I was leaving to teach he said to me, "As you know, I've thought about teaching. But I finally decided that I enjoy the courtroom and the boardroom too much to spend the rest of my career in the classroom." By which he meant that he preferred to tackle the day-to-day challenges and issues that arise in the real-life practice of law (at least at his very high level) to a more passive and routine sort of life.

So, it appears that the right situation seems to have come along at the right time. From that perspective, I'm not sure that there are any more general lessons to read into his decision regarding judicial pay or anything like that.


Without speaking with Luttig to ascertain the real reasons for his leaving, it seems to me a major omission in your failure to even mention the Padilla case.
5.11.2006 4:47pm
Michaelg (mail):
The Washington Prowler at The American Spectator's blog:

"Wallace received a poorer rating than Brett Kavanaugh, and for the same reason that Kavanaugh has been suffering through delays: his role in the impeachment proceedings of President Bill Clinton.

"The Clintons now exert a remarkable amount of influence, particularly during election cycles. The Democrats feel they can attack these Republican nominees with impunity."
5.11.2006 4:48pm
The rating of Wallace was unanimous, meaning even the Republicans on the panel agreed. Conspiracy theories invovling the Clintons don't take that fact into consideration.
5.11.2006 4:51pm
davidbernstein (mail):
More interesting than why Luttig would leave the Fourth Circuit (personally, I can't imagine being an appellate judge for 30+ years, which was his trajectory, unless I were willing to give the work over to my clerks), is why Boeing wants a G.C. who isn't a business lawyer, and hasn't been for years and years (ever?) I'm sure that Luttig is more than capable as a legal mind, but where's the experience? Does this suggest that Boeing believes that Luttig will help it with rent-seeking in a Republican administration?
5.11.2006 4:51pm
Zywicki (mail):
Could be, but I suspect the model here is something more like Bill Barr, who went from Attorney General to a very successful GC at Verizon. I realize they aren't completely analogous, but my impression is that these guys get hired for their smarts, judgment, and reputation more than their particular business experience. This does not strike me as a completely unorthodox pedigree for a GC. Boeing and its leadership has had some problems lately also, so a former federal judge is the kind of guy who can provide confidence and integrity to a troubled company.
5.11.2006 5:00pm
It seems quite odd to me that an ABA nominations panel which includes several Republican donors would unanimously rate a nominee as "unqualified" for purely partisan reasons. I, too, am curious.
5.11.2006 5:05pm
Frank Drackmann (mail):
The ABA really needs to adopt the Red White and Blue ball of the former ABA if they are going to continue to be such a joke.
5.11.2006 5:08pm
Anderson (mail) (www):
I'm wondering about the Wallace NQ rating myself, tho from the other end of the political spectrum.

All we know about the basis is that the ABA panel supposedly interviewed lots of people about Wallace. Although I'm in Jackson, MS, I'd never heard of the man before his nomination, so I don't know anything about him.

It would be disappointing if his (highly) partisan career record were the sole basis for the NQ. Recall that even Pickering got a majority WQ rating. We may just have to wait for the hearings to find out what, if anything, they've got on him.
5.11.2006 5:08pm
Hugh59 (mail) (www):
The ABA has become hyperpartisan. Who knows why the Republicans on the panel voted the way they did. I dropped my membership after it downrated Robert Bork (as did many conservatives). Now the ABA is so far removed from my belief system that I avoid it.
5.11.2006 5:09pm
Frank Drackmann (mail):
OH, I see the reason for the poor rating. He attended a state law school, and while at Harvard for undergrad, there was a mention of cum. He has represented big Tobacco,Oil,and Cable TV companies for God's sake, and also the racist Republican party of Mississippi in the latest redistricting fight. He also represented some local yocal in an imminent domain suit, clearly an attempt to disguise his true Authoritarian leanings. And being a member of the Order of the "Coif" probably didnt help.
5.11.2006 5:16pm
Nobody Special:
I'm confused as hell about the Wallace rating.

I'd trade my resume for his.
5.11.2006 5:18pm
I understand that liberal bias is responsible for most bad things in America today, but I never thought I would see it blamed for the votes of Republican committeemembers.

In theory, you'd think it would be possible that something else is going on.
5.11.2006 5:21pm
Anderson (mail) (www):
He also represented some local yocal

We are "yokels," sir, not "yocals." And I think "imminent domain" was one of the stated reasons we invaded Iraq.
5.11.2006 5:21pm
Michaelg (mail):
Just trying to keep the conversation lively.
5.11.2006 5:24pm
Anonymous Jim:
"By which he meant that he preferred to tackle the day-to-day challenges and issues that arise in the real-life practice of law (at least at his very high level) to a more passive and routine sort of life."

And the pay ain't bad eitehr.
5.11.2006 5:24pm
Frank Drackmann (mail):
Interesting that Judge Wallace was Cum (Laude) while at Harvard, and was involved in the Clinton Impeachment, which also was about Cum. And while I may have misspelled "Yocal", I know my Cums.
5.11.2006 5:36pm
blackdoggerel (mail):
There is undoubtedly something more to the Wallace rating than mere partisanship. Unanimously unqualified, despite his resume and experience, notwithstanding some hot-button representation? You can count the number of unanimously unqualified people in the last 25 years on one hand. There HAS to be something more going on here. And I want to know.
5.11.2006 5:46pm
Were there any Republican committee members? Other than Arlen Specter, I don't know any Republicans who are still members of the ABA.
5.11.2006 5:46pm
frankcross (mail):
Well, there's evidence that the ratings have some bias, but not so great as people suggest. Lots of Republicans are in the ABA. I think the reason for the rating is explained by the fact he hasn't served as a judge, which is an important factor.

I think the ABA should get out of the business or at least provide the basis for its ratings explicitly because it no longer has the credibility to be making oblique pronouncements. And it's certainly debatable whether prior judicial service should be so emphasized.
5.11.2006 5:53pm
Anderson (mail) (www):
Yeah, Hem. Anyone know who these ABA committee members are?
5.11.2006 5:55pm
The ABA's "rating" screams of McCarthyism. They hang this scarlet letter on a nominee with no obligation to explain why they did it.
5.11.2006 6:00pm
Some Lurker:
There have been plenty of circuit court nominees without prior judicial experience. But as others have pointed out, unanimous NQ ratings are very rare. It seems to me there must be something else going on, and it will have to become public at some point.
5.11.2006 6:00pm
Stephen Bainbridge analyzed the political donations of the committee members and found there were more Democrats than Republicans, but that there were definitely some who donated exclusively to Republicans, including one who gave several times to President Bush and another who gave to the RSCC.

Clearly, something is up here. The guy may have no judicial experience, but there are plenty of Circuit Court nominees who have no judicial experience, and his resume certainly appears to be that of a distinguished appellate lawyer. And it's impossible to believe that people who donate exclusively to President Bush and other Republicans suddenly turn around and rate a nominee unqualified for partisan Democratic reasons.

There has to be more to the story, but there aren't many left-leaning blogs that track judicial nominations, and all the right-leaning blogs seem to have chalked it up to OUTRAGEOUS liberal bias and gone no further. Someone needs to spill the beans.
5.11.2006 6:03pm
Can anyone post a link as to who the members of the committee are? If not, how does anyone know that some of them are Republicans?

I recall that the ABA rated Richard Posner only Q, not WQ, since when I can't imagine why anyone has paid any attention.
5.11.2006 6:07pm
SWG (mail):
The ABA website has information on the standing committee on the federal judiciary, including its 2005-2006 membership and the procedures they are supposed to follow in evaluating candidates.

http://ww<a rel="nofollow" href=""></a>
5.11.2006 6:12pm
Anderson (mail) (www):
Here's the Bainbridge post that Steve referred to above. Doesn't say where he got the 9 committee members he lists.
5.11.2006 6:15pm
On Luttig, maybe this is an inevitable consequence of nominating court of appeals judges in their mid-30s. Some will stay on for life, while others will simply get bored. Boredom plus the opportunity to make more money elsewhere may be sufficient to drive some of these judges to pursue other challenges.

On Wallace, I'm really curious to hear the ABA's rationalization. They're like a less narrowly-focused version of PFAW, and having them rate nominees makes about as much sense as having NWLC, the Federalist Society, ACS, PFAW, or any other activist group do so. The problem with the ABA is that its name lends a pretext of objectivity.

An ABA rating is more a sign of political vulnerability than qualifications. For example, they knew better than to trash John Roberts. Mike Wallace, on the other hand, is apparently politically vulnerable. Brett Kavanaugh? More vulnerable now than he was 2 years ago.

Rather than asking yourself if Mike Wallace is unqualified, ask yourself how much of an easy target he is. In that light, the rating might make a bit more sense.
5.11.2006 6:35pm
Anderson (mail) (www):
Ah, SWG, thanks for the URL. This link shows you the committee members.
The Standing Committee on Federal Judiciary consists of fifteen members - - two members from the Ninth Circuit, one member from each of the other twelve federal judicial circuits and one member-at-large. The members are appointed for staggered three-year terms by the President of the ABA, based on their reputations for professional competence, integrity and devotion to public service. Each member contributes several hundred pro bono hours per year to this public service.
Question: how do you appoint someone "from" the Federal Circuit?
5.11.2006 6:35pm
DJ (mail):
We'll know about Wallace when the ABA presents its report to the Judiciary Committee. While there's no denying the leftist bent of the ABA, something more than bias must be at work here. The Committee must have uncovered something pretty nasty--something more than a Confederate flag pin, I'd wager--to justify a unanimous rating. But if it's anything less than a bombshell, then the ABA's sure got some serious 'splainin' to do.

As for the reasons Luttig quit: Why not all of the above? Major creer decisions are usually pretty complicated, right?
5.11.2006 6:37pm
Anderson (mail) (www):
On Luttig, maybe this is an inevitable consequence of nominating court of appeals judges in their mid-30s.

Very interesting as a potential flaw in the (thus far very effective) Republican strategy to appoint younger judges who'll hold the bench for a couple of generations to come.

I would like to add that Republicans are also more likely to jump ship for high-paying private-sector jobs, but alas, that probably would be more rhetoric than reality. (Tho I would be happy to see a study done!)
5.11.2006 6:38pm
Rather than asking yourself if Mike Wallace is unqualified, ask yourself how much of an easy target he is. In that light, the rating might make a bit more sense.

An easy target? Why? Because Republicans are so helpless in the present political environment?

I suggest there is nothing "easy" about giving a unanimous unqualified rating to an experienced and distinguished appellate lawyer. How many unanimous unqualified ratings has the ABA given out in the past? Something besides raw partisanship is clearly at issue.

Question: how do you appoint someone "from" the Federal Circuit?

You obviously can't live in the Federal Circuit, but you can certainly be a member of its bar.
5.11.2006 6:48pm
VA (mail):
Fascinating list of the members of the ABA Standing Committee on the Federal Judiciary. Looks like the DC Bar gets two members along with the Ninth Circuit. Both Marna Tucker (member from the DC Circuit) and John Payton ( member from the Federal Circuit) are former DC Bar presidents.
5.11.2006 6:48pm
Justin (mail):
Anderson, since the Federal Circuit has a national jurisdiction, anyone in the country could conceivably serve as that member.

I assume what they meant, however, is someone who is a member of the Federal Circuit bar, which is a much smaller group of people.
5.11.2006 6:49pm
Anderson (mail) (www):
Note btw the ABA's flat statement that it doesn't consider ideology at all. Which even this Dem finds difficult to credit.

This is interesting:
In addition, while on the Committee, each member agrees not to participate in or contribute to any federal election campaign or engage in any partisan political activity on the federal level.
I'd like to see the terms of service of the members Bainbridge listed.

(The nominee is asked by the ABA to sign a waiver to let them see disciplinary records. If Wallace threw the waiver in the trash, would that get him an automatic NQ?)

Also, the process leaves the great bulk of the investigation to the circuit member for that nominee. So Kim Askew, who Bainbridge found had donated to Barbara Boxer, carried the water on Wallace. Obviously, a lot depends on the member's discretion.
When a nominee is found "Not Qualified," the Committee, based on its investigation, has determined that the nominee does not meet the Committee's standards with regard to professional competence, judicial temperament or integrity. In that event, the Committee opposes the nomination in such ways as appear appropriate under the
circumstances. This has traditionally taken the form of testimony by the Committee Chair and the member who conducted the investigation presented at the nominee's confirmation hearing at the request of the Senate Judiciary Committee.
Will all be revealed?
5.11.2006 6:49pm
The nominee is asked by the ABA to sign a waiver to let them see disciplinary records. If Wallace threw the waiver in the trash, would that get him an automatic NQ?

The thought had occurred to me. I could see a good Federalist Society member saying, "Why should I cooperate with the ABA's investigation at all?"

It's a wonder this hasn't become a common strategy, as I could hardly see it hurting a nominee's chances before the present Senate.
5.11.2006 6:53pm
Anderson (mail) (www):
You obviously can't live in the Federal Circuit, but you can certainly be a member of its bar.

Okay, no more attempts at humor from me. In this thread, anyway.
5.11.2006 6:58pm
OleMissWahoo (mail) (www):
Wallace is supremely qualified and is quite an impressive individual. I don't know what the ABA criteria is for deciding whether an individual is qualified or not. They certainly didn't judge him on his legal credentials.
5.11.2006 9:02pm
Howard257 (mail):
I don't blame Luttig in the least (even before reading the account in today's Wall Street Journal), and wish him nothing but the best in his new career. However, I would think he could make even bigger $ as a partner in a top-flight law firm rather than in the corporate world.

Point about younger judges getting bored is very persuasive, but that's the chance taken with any appointment.

As for others leaving the bench, let's not forget (although I would rather) George Mitchell, who did MORE damage in the US Senate than he did as federal judge, and arguably the most bone-headed career move ever: Arthur Goldberg's decision to leave SCOTUS to become UN ambassador.
5.11.2006 9:07pm
Frank Drackmann (mail):
Maybe the ABA thought Mike Wallace of CBS was the candidate, or George Wallace returned from the grave? I'd have to agree with giving those 2 a big fat NQ. I'm still suspicious that the Cum business from Harvard had something to do with it, that and the fact that he's a practicing Homo Sapiens.
5.11.2006 9:16pm
Tony (mail):
We probably will never hear the ABA's report because Wallace will remove himself to prevent it from becoming public. It has been 20 years since someone was unanimously deemed unqualified: The is something to it.

The reason it has been 20 years, however, is not that there has never been a potential nominee universally deemed unqualified in that time; it is because all previous presidents had the potential nominees screened BEFORE nominating them.

As to Wallance, you can look at the factors considered and compare it to what we do know to determine what is missing. It must have to do with integrity. And it must be bad to get a unianimous result. Bad enough that he pulls out to avoid it being revealed? We'll see.
5.12.2006 12:05am
A unanimous NQ rating is extremely rare; I can see no reason why it would be easier to get one in this case.

The only explanation I can see is that the ABA investigation turned up some skeleton in Wallace's closet, or allegations thereof.
5.12.2006 3:58am
Frank Drackmann (mail):
What about the skeleton in Ted Kennedys Oldsmobile? Isn't he an attorney also, on the committee that judges Supreme Court nominees? He's running for reelection this year, the one good thing is you don't see many 350 lb 80 year olds, so this may be his last term.
5.12.2006 7:51am
Seamus (mail):
What about the skeleton in Ted Kennedys Oldsmobile? Isn't he an attorney also, on the committee that judges Supreme Court nominees?

I don't think anyone ever thought Ted Kennedy could be taken seriously as a candidate for a federal judgeship. The standards for senators from Massachusetts are much, much lower.
5.12.2006 10:40am
Raw_Data (mail):
"Follow the money."
5.12.2006 10:44am
Anderson (mail) (www):
Arthur Goldberg's decision to leave SCOTUS to become UN ambassador

He took his toys Ninth Amendment and went home.
5.12.2006 10:50am
M. Simon (mail) (www):
Bork legislates from the bench.

He considers the IXth Amdmt. an ink blot.

Seems pretty unqualified to me.
5.13.2006 3:52am