All this came to mind thanks to a fine editorial in today's Wall Street Journal, calling attention to Lynn's apparent success in persuading the Internal Revenue Service to threaten the tax exemption of churches if their clergy give sermons that say much of anything about political issues. The Constitution does not oblige the government to exempt churches from taxation. But neither does it oblige the government to freeze churches out of political debate as the price of a tax exemption. That was a legislative choice, currently embodied in statutory language dating from 1954. The trouble, as the Journal points out, is that "what constitutes political activity" is very ill-defined. And so churches are the victims of the waxing and waning enthusiasms for crackdowns at the IRS.

Thanks also to the Journal for pointing to the way out of this nonsense, in legislation that Congressman Walter Jones (R.-NC) has proposed, the "Houses of Worship Free Speech Restoration Act," or H.R. 235. May Mr. Jones get some co-sponsors soon.

Bruce Fein’s feeble defense of the ABA task force’s foolish report on presidential signing statements provides another occasion to call attention to the other signatories to the report:

Neal R. Sonnett, Miami (task-force chairman)

Mark D. Agrast, Center for American Progress

Mickey Edwards, former congressman from Oklahoma

Harold Koh, dean of Yale Law School

Charles Ogletree, Harvard Law School

Stephen A. Saltzburg, George Washington University Law School

William S. Sessions, former federal judge and FBI head

Kathleen M. Sullivan, Stanford Law School

Thomas M. Susman, Ropes & Gray (D.C. office)

Patricia M. Wald, former D.C. Circuit judge

(I provide brief identifying information in order to avoid possible confusion with any other persons of the same name.)

When someone signs his or her name to a report, the public naturally trusts that the person has exercised reasonable diligence in determining that the report is sound.  Each of the signatories to the ABA’s report either has betrayed that trust or lacks the minimal legal acumen ordinarily associated with that signatory’s position and experience.  Remember that next time you hear anything from any of the signatories.

The conference has prompted lots of press attention, and links to most of the coverage (and the draft conference papers) are available here.

So today, the Philadelphia Inquirer published an op-ed by one of our attorneys, Roger Severino, on both the new situation in Philadelphia, and the broader problem addressed in our conference.  The op-ed is available through this link.

As a follow-up to Matt’s post, I offer some thoughts on whether Judge Taylor should have recused herself from the NSA case—and on the judgments of supposed legal ethics experts on this question:

1.  Here are the relevant facts, according to the New York Times article:  (a) Judge Taylor is on the board of trustees of the Community Foundation for Southeastern Michigan, which provides grants to various nonprofit organizations.  From 1999 to 2002, the board awarded at least four grants, totaling at least $125,000 to the Michigan ACLU, for projects involving the Bill of Rights, racial profiling, and gay rights.  Taylor evidently was on the board of trustees during this time.  (b) The Michigan ACLU was a plaintiff in the NSA case before Judge Taylor.

2.  Stephen Gillers, an oft-quoted professor at New York University, has opined that the fact that Judge Taylor “sits on the board of a group that gives money to the plaintiff for an otherwise unrelated endeavor would not in my mind raise reasonable questions about her partiality on the issue of warrantless wiretapping.”  Let’s consider this question.

Back in the old days, before it became fashionable for liberal judges and academics to indulge their policy preferences, a person with a well-trained legal mind would examine whether his policy preferences were infecting his judgment by considering some analogous hypotheticals.  Assume, for example, that a judge sat on the board of a foundation that in recent years had given various grants to a conservative group for projects involving promotion of the Pledge of Allegiance, defense of marriage, and opposition to embryo-destructive stem-cell research.  If that conservative group was a party in a lawsuit in the judge’s court involving, say, the constitutionality of abortion regulations, should the judge recuse herself?

I don’t have a ready answer to this question, but it would seem to me that the question would require far more serious consideration than Gillers appears to have given the question of Judge Taylor’s recusal.  This is the same Gillers, as it happens, who, in the midst of the Roberts confirmation process, offered the badly flawed opinion that Roberts, as a D.C. Circuit judge, should have recused himself from the Hamdan case because “the public can never know” how the prospect of a Supreme Court nomination might have affected his thinking.  The same Gillers who recklessly opined that Justice Scalia’s participation in a legal seminar sponsored by a group that does not litigate raised serious ethical concerns.  The same Gillers who, in advice that other ethics gurus questioned, advised Justice Breyer that Breyer could take part in a case presenting the question whether the sentencing guidelines are constitutional, notwithstanding Breyer’s own extensive involvement in creating the guidelines.  Anyone notice a pattern?

3.  The three legal ethicists interviewed by the New York Times—Gillers, Steven Lubet of Northwestern, and Deborah Rhode of Stanford—all opined that Judge Taylor should have disclosed her indirect connection to the Michigan ACLU.  From the way their comments are presented, the reader is left to conclude that disclosure would have cured any problem.  But, under the applicable law, disclosure alone is irrelevant.  Under 28 U.S.C. 455(e), where the ground for disqualification arises only under subsection 455(a) (recusal where “impartiality might reasonably be questioned”), the parties may waive disqualification if their waiver “is preceded by a full disclosure on the record of the basis for disqualification.”  In other words, if recusal would otherwise have been required under 455(a), full disclosure would merely have enabled the parties to decide whether to waive Judge Taylor’s recusal.

4.  The New York Times oddly finds newsworthy the assertion of the Michigan ACLU’s executive director that judges “have not recused themselves when there’s been a much, much stronger connection to an organization.”  Judicial practice under the applicable rules would certainly be worth addressing, but what possible reason is there to think that the Michigan ACLU’s executive director is knowledgeable about this practice?  Or should we read the assertion as a troubling signal that judges with even closer ties to the ACLU have failed to recuse themselves from cases involving the ACLU?

As I mentioned last week, the current issue of National Review includes my essay “Not Qualified,” in which I argue that the Senate Judiciary Committee should displace the ABA from its privileged role in the judicial-confirmation process.  My essay, which focuses on the ABA’s mistreatment of Fifth Circuit nominee Mike Wallace, is now available online here.

�

• The president's claim of executive authority to ignore the Fourth Amendment and violate federal laws in the name of protecting national security has no apparent limits.
• [N]o administration in memory, and perhaps none ever in American history, has so frequently claimed that it can ignore the Constitution, as well as federal statutes and ratified treaties, to pursue important goals.

�

These would alarming things indeed, if the administration had made arguments remotely resembling these descriptions.� As Chemerinsky ought to know perfectly well, its arguments have been about what the Constitution means, requires, and forbids, and ditto for relevant federal statutes and treaties.� When Professor Chemerinsky can learn not to deceive his readers about what is argued by those who disagree with him, he will deserve a substantive rebuttal.

I'm truly shocked. It's like the feeling you have when you're grading blue books and you realize this one's going to have to get an F.

I finally had the time today to read the whole opinion in ACLU v. NSA... I mean, that was the whole opinion, right? I kept shuffling the pages around and looking under the table to see if there were some pages I missed...

What the hell? Was there no law clerk who had enough nerve to say, Judge, it can't go out like this? How do you ever get to the level of arrogance that keeps you from seeing when an opinion is this patently deficient? Where do you acquire the vaulting imagination that allows you think an opinion in this form will even help the side you're rushing to hand a victory to? I can see slipping into abject carelessness in a low profile case, but this is such a conspicuous case. I simply cannot fathom how a judge with any sense at all, with any assistance from law clerks who were not cowed into ridiculous submission, would file a case in this form.

Washington Post columnist William Raspberry used to reach into his bag of journalistic conceits every so often and write a column reporting on his latest conversation with his favorite cab driver—a fictional character, or so I always thought.  Well, I’ve got America’s Smartest Mailman, and he’s a real guy.  ASM said to me yesterday, “you know when that Detroit judge said there are ‘no powers not created by the Constitution’?  Well, did it ever occur to her that the power she claims to overturn a presidential decision can’t be found in the Constitution either?”

Dead right, ASM.  The power we call “judicial review” is at best an inference from the Constitution’s text, and depending on how much breadth and muscle you want to give it, that power rests on a far weaker basis than the president’s authority, as commander in chief, to eavesdrop on the nation’s enemies during wartime.

How do I know he’s America’s Smartest Mailman?  Every other week he takes his break in his truck at the end of our block, and reads my National Review before he delivers it.  Hmm.  Maybe I should give him a gift subscription for his own copy.

Even legal experts who agreed with a federal judge’s conclusion on Thursday that a National Security Agency surveillance program is unlawful were distancing themselves from the decision’s reasoning and rhetoric yesterday.

They said the opinion overlooked important precedents, failed to engage the government’s major arguments, used circular reasoning, substituted passion for analysis and did not even offer the best reasons for its own conclusions.

Discomfort with the quality of the decision is almost universal, said Howard J. Bashman, a Pennsylvania lawyer whose Web log provides comprehensive and nonpartisan reports on legal developments.

“It does appear,” Mr. Bashman said, “that folks on all sides of the spectrum, both those who support it and those who oppose it, say the decision is not strongly grounded in legal authority.”

The nation would benefit from a serious, scholarly and hard-hitting judicial examination of the National Security Agency's program of warrantless surveillance. . . . Careful judicial scrutiny could serve both to hold the administration accountable and to provide firmer legal footing for such surveillance as may be necessary for national security.

Unfortunately, the decision yesterday by a federal district court in Detroit, striking down the NSA's program, is neither careful nor scholarly, and it is hard-hitting only in the sense that a bludgeon is hard-hitting. The angry rhetoric of U.S. District Judge Anna Diggs Taylor will no doubt grab headlines. But as a piece of judicial work — that is, as a guide to what the law requires and how it either restrains or permits the NSA's program — her opinion will not be helpful. . . . .

. . .her opinion, which as the first court venture into this territory will garner much attention, is unhelpful either in evaluating or in ensuring the program's legality. Fortunately, as this case moves forward on appeal and as other cases progress in other courts, it won't be the last word.

Just a quick follow-up to my post from yesterday.  I’ve now had a look at Alan Dershowitz’s The Best Defense, and I don’t see how William Tucker could have been misled by any misunderstanding of that book into confusing the history of who was on the Court (Goldberg or Frankfurter) when Mapp was decided.  Early in the book, Dershowitz specifically mentions Mapp as being decided in 1961.  More than 250 pages later, he mentions beginning his clerkship with Goldberg in the summer of 1963.  Looks like the error sprang solely from Tucker himself—maybe the kind of mistake a lot of us make when relying on our memory and not checking its accuracy.

President Bush signed into law today H.R. 4, the “Pension Protection Act of 2006”.  I am pleased to report that the White House gave the ABA’s foolish resolutions on signing statements the full weight they deserved:  zero.  The President’s signing statement includes these boilerplate provisions about how the President will construe certain provisions of the Act:

The executive branch shall construe sections 221(a) and 1632(b)(1) of the Act, which call for the submission of legislative recommendations to the Congress, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and to recommend for the consideration of the Congress such measures as the President shall judge necessary and expedient. 

 

Section 1634(e) purports to require the United States Trade Representative to submit to congressional committees the contents of the negotiating positions of the United States and foreign countries in certain international trade negotiations.  The executive branch shall construe section 1634(e) in a manner consistent with the President's constitutional authority to conduct the Nation's foreign affairs including negotiations with foreign countries, supervise the unitary executive branch, and to withhold information the disclosure of which could impair foreign relations, national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties. 

First, he opens by remarking that in the Hudson v. Michigan ruling two months ago, the Supreme Court held that "police did not violate the Fourth Amendment." But that’s not what the Court said. In fact, since Michigan’s counsel conceded such a violation, "the issue here," as Justice Scalia wrote, "is remedy" and nothing else. Granting a violation of constitutional rights by the police, was exclusion of evidence a necessary or correct remedy? This distinction between violation (did one occur?) and remedy (what shall be done?) is in fact pretty important, both in reasoning about the Fourth Amendment and in thinking about its history. Contrary to an impression Tucker gives later in his article, the Mapp v. Ohio decision in 1961 was not the first instance in which the Court held the Fourth Amendment applicable to the states. That had been done in Wolf v. Colorado in 1949, but Mapp applied the exclusionary remedy (in force in federal cases since 1914, as Tucker notes) to the states for the first time.

Tucker’s second mistake is a simple historical one. He notes that when Mapp came before the Supreme Court, President Kennedy had recently replaced Justice Felix Frankfurter by appointing Arthur Goldberg. Nope. Mapp was decided on June 19, 1961, and Justice Frankfurter (who dissented—he’d written the Wolf decision) served another full year beyond that, with Goldberg taking his oath to fill Frankfurter’s vacated seat on October 1, 1962. Perhaps Tucker is led astray by a source he relies on later, when he cites Alan Dershowitz’s The Best Defense and notes that Dershowitz "was clerking for Justice Goldberg when Mapp was decided." Dershowitz did indeed clerk for Goldberg, but later; in 1961 he was still a law student. Perhaps he he mentions his clerkship, and his having been influenced by Mapp as a defense lawyer, in close proximity in this memoir (which I don’t have), and Tucker misunderstood him.

Matt has exposed the major folly in Adam Cohen’s typically vacuous op-ed in today’s New York Times.  I will limit myself to a minor point, a point so minor that it would hardly be worth noting, except that it illustrates that the “specialist in speciousness,” as Matt labels Cohen, can’t be trusted on small matters either. 

According to Cohen, “when Justice Antonin Scalia, who loves to hold forth on court precedents, was asked about [Bush v. Gore] at a forum earlier this year, he snapped, ‘Come on, get over it.’”  Scalia “snapped”?  In fact, as I pointed out as part of a previous series of posts (see also here, here, here, and here) responding to a lengthy hit piece that Cohen wrote on Scalia, Scalia supported his remark by pointing out that “this was an election ago now,” by referring to the comprehensive review by a consortium of newspapers (including the New York Times) establishing that Bush would have won under any plausible recount, and by noting that seven justices had agreed that there was an Equal Protection violation.  Some snap.

In connection with Matt’s post on today’s New York Times editorial, a reader is suitably struck by the Times’s concern that providing the ABA’s underlying report on Fifth Circuit nominee Mike Wallace to the Senate Judiciary Committee on a confidential basis—as Chairman Specter has quite reasonably requested—“could discourage lawyers from speaking freely” to the ABA:

The NYT, who editorialized in favor of Vice-President Cheney’s disclosure of the energy task-force information, in favor of the release of internal memos from the time Miguel Estrada worked in the Solicitor General’s Office, in favor of the public disclosure of the NSA surveillance program, in favor of public disclosure of our programs tracking terrorists funds internationally . . . has finally found value in confidentiality.

Rank, cynical, infuriating, mindless hypocrisy.

Yes, those last five words would be a fitting motto for the New York Times editorial page.

Also at today’s New York Times, that specialist in speciousness Adam Cohen has a piece on the legacy of the Supreme Court’s ruling in Bush v. Gore. Poor Mr. Cohen is terribly confused, but then he is not alone. On the one hand, he really hates the “antidemocratic result” of that case (I think he meant to say “anti-Democratic”), but on the other he celebrates the possibilities of the ruling’s impact, saying that “it should mean that states cannot provide some voters better voting machines, shorter lines, or more lenient standards for when their provisional ballots get counted,” as happens in some states now.

Cohen perpetuates one of the favorite myths of the Bush v. Gore critics, that the Court attempted to issue a decision good for one day and one train only, with no future as a precedent. But that’s just not so. Here is how Cohen characterizes it (note well what is and what is not inside his quotation marks): “The majority opinion announced that the ruling was ‘limited to the present circumstances’ and could not be cited as precedent.” The five words quoted do indeed appear in the per curiam opinion of the Court, but they are not part of any diktat that the holding that day “could not be cited as precedent,” as Cohen has it in his own words. In fact, properly heeding a ruling’s effect as a precedent for any subsequent case always involves attention to the “circumstances” of the earlier holding, to see whether the fact pattern and legal issues are similar enough in the newly arising case.

But here is the context from which Cohen lifts the five words:

The recount process, in its features here described, is inconsistent with the minimum procedures necessary to protect the fundamental right of each voter in the special instance of a statewide recount under the authority of a single state judicial officer. Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.

The question before the Court is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections. Instead, we are presented with a situation where a state court with the power to assure uniformity has ordered a statewide recount with minimal procedural safeguards. When a court orders a statewide remedy, there must be at least some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied.

Cohen complains at one point about an en banc Ninth Circuit ruling that, in his view, “dispensed with Bush v. Gore” as though it found “the whole subject distasteful.” But if he means the ruling I think he does, the court simply quoted the sentence that begins the second paragraph above and concluded that the question before it was the same one identified there.

One can argue about whether the Bush v. Gore opinion fences in the principle of equal protection in voting rights too tightly for the constraints on its impact to be logically sustained in future cases. If uncontrolled diversity of procedures is impermissible in a statewide recount undertaken for remedial purposes by a “state court with the power to assure uniformity,” then maybe it makes sense to extend the principle of uniformity to such matters as differing ballot-machine technologies. Or maybe not. But it is not an illegitimate attempt to ditch the principle of stare decisis for the Court to say, in effect, “Pay attention closely now. A principle is at stake here in an obvious way that will not necessarily be at stake in subtler, more complex circumstances in the practical world of routinely running elections.” That is not the same thing as saying, “Do not treat this ruling as a precedent in any case in the future.” Not even if Adam Cohen says so.

For the record, I have never admired the reasoning in the per curiam opinion in Bush v. Gore—the handiwork of Justices Kennedy and O’Connor, and for that reason alone highly suspect. I have always found the concurring opinion of Chief Justice Rehnquist (joined by Scalia and Thomas) infinitely preferable. But even Anthony Kennedy and Sandra Day O’Connor can get a bad rap occasionally, and the suggestion that they wanted to give the election to George W. Bush and then put their ruling in a precedent-free zone is just that.

Pardon my French—that’s “Down with the ABA!”—but I couldn’t resist the palindromic title.

For NR subscribers (which ought to mean every Bench Memos reader):  The new issue of National Review includes my essay “Not Qualified,” in which I argue that the Senate Judiciary Committee should displace the ABA from its privileged role in the judicial-confirmation process.  Among other things, my essay examines the systemic flaws in the selection of the members of the ABA committee that rates nominees, exposes the remarkable bias of members selected by outgoing ABA president Michael Greco, and shows what the committee did to Fifth Circuit nominee Mike Wallace. 

For the best and most thorough treatment that I’ve seen of presidential signing statements, see this 43-page Chicago Public Law and Legal Theory working paper by Professors Curtis A. Bradley and Eric A. Posner. 

Comparing the substance of the constitutional positions taken in signing statements by President George W. Bush and President Clinton, Bradley and Posner find them “extremely similar”:  “the signing statements do not themselves provide evidence that Bush and Clinton have significantly different views about the scope of executive power.”  (See examples on pages 14-17.) 

Why, then, the much larger number of legal provisions subjected to signing-statement challenges by President Bush?  Bradley and Posner offer this highly plausible speculation:  “perhaps the Bush administration is like a lawyer who writes ‘privileged and confidential attorney work product’ on every [privileged and confidential] document he writes, even when it is extremely unlikely that the document will ever be subject to discovery.”  Yes, indeed, that may well be what has given rise to all the hullabaloo.  

Or, more precisely, hooray for the ABA’s self-immolation.

I confess that I was beginning to fear that it was all too good to be true:  An ABA president who is a left-wing blowhard stacks a task force with highly credentialed critics of President Bush.  That task force somehow produces a report on signing statements that is stunningly incompetent and that invites scathing criticism from leading academics across the political spectrum.  All that remained was for the student government wannabes in the ABA House of Delegates to give the report their rubber stamp of approval.  Please, please, I was hoping, let there not be a voice of sanity somewhere in the ABA that has the clout to deep-six the report before the rubber stamp is applied.

Fortunately, my fear was not realized.  Rather, as this Boston Globe article reports, the ABA’s House of Delegates, after an hour of supposed debate (I’d like to see the transcript of that!), approved the task force’s report. 

The ABA as a body, having applied its full set of grandiosely styled processes, has now committed an act of collective idiocy that would amount to malpractice if an attorney were providing that advice to a client.  Those of us who have decried the ABA’s politicization in recent decades—and its moral extortion of those of its members who see little choice but to belong—now have been handed more potent, nonpartisan ammunition:  The ABA can’t even be trusted to be minimally competent in its formation of its legal positions.

Thank you, Michael Greco, for your enduring legacy!

Outgoing ABA President Michael Greco recently delivered his valedictory address (video available here) at the ABA’s annual meeting in Honolulu, and—surprise, surprise—it’s a ridiculously pompous, cliché-ridden hoot.  My favorite laugh lines:

“Our fellow Americans, as never before, are looking to our Association with hope, with trust, and with respect for our leadership.”

“In our generation, it is the lawyers of America who by destiny and by choice are the guardians of the walls of freedom.  It is the American Bar Association that is protecting the separation of powers and the balance of powers by checking the excesses of any branch of government that would overreach.”

Laurence Tribe (my constitutional-law professor at Harvard, as it happens) explains in this very long post his “own strong disagreement” with the ABA task force’s report.  As he puts it, “the ABA panel has missed the boat.”  Although there’s much in the post about the substance of President Bush’s signing statements (and constitutional views generally) that strikes me as over-the-top, I believe that everything that Tribe says about the folly of the ABA task force’s report is fully consistent with what I have written.

To his credit, Tribe acknowledges that he was tempted to remain silent because of his friendships with various task force members.  That presumably explains much of the silence from other liberal academics.  (In the opening line of a follow-on post, Sandy Levinson expresses his agreement with Tribe.)

The more revealing question, which I pose again, is:  Is there any academic, not on the ABA task force, who agrees with its analysis?  So far as I can tell, the answer is no.

The post also contains a lot of criticism of the Bush Administration’s practices on the non-enforcement of provisions of law regarded as unconstitutional, including some specific criticism of the substance of signing statements.  Whether or not one agrees with the post, it responsibly identifies areas where meaningful discussion and debate could begin to take place. 

This article by Charlie Savage in the Boston Globe, which discusses the blog post by Dellinger et al., shows that the ABA is still in deep denial.  ABA president Michael Greco, showing a complete lack of awareness of the critiques leveled against the task force’s report, continues his record of never having made an intelligent comment on the subject.  More amusingly, task force member Charles Ogletree, a professor at Harvard Law School, attributes the criticism to “people closely connected to executive branch careers”—as though Walter Dellinger, who has been a longtime champion of congressional power versus the executive, had his judgment biased rather than informed by his service in the executive branch.  Ogletree could learn a bit by talking with his colleague David Barron, who is one of the signatories to the Dellinger post.   

Ogletree also claims that the Dellinger group “want[s] us to harshly criticize Bush” but that the ABA task force “said let’s raise this to a higher level of debate.”  It is true that the task force’s legal position is formally nonpartisan:  it applies equally stupidly to Democratic and Republican presidents.  But, as Greco’s vituperative statements have shown, the timing of the task force and its stacked composition reflect deep antipathy to President Bush, and Greco is intent on using the task force’s report as a weapon against this Administration.  (You can be sure that it will disappear in the next Democratic administration.)  The “higher level of debate” line is too funny to merit a response. 

A couple other points:  Savage’s article repeats his claim, which even the ABA task force has rejected, that “Bush has used [signing] statements to challenge more than 800 laws.”  It would appear that Savage means “provisions of laws” when he says “laws”.  And Savage reduces my comprehensive critique of the ABA task force’s report (here, here, here, and in my Weekly Standard essay linked here) to a “swipe”. 

By the way, I hear that the Administrative Law section of the ABA is likely to express its disagreement with the task force’s report but that the House of Delegates will surely rubber-stamp the report. 

William H. Pryor Jr.
One of my fondest memories of college life was watching MTV. Our college installed cable in the dorms my sophomore year (1981-82). Many of my friends back then were musicians, but not rockers. Most of us played in the university band and orchestra. I still remember one friend, a chemistry major, who regularly watched MTV with the television sound off (no mute button then) while he listened to orchestral music. You have not experienced MTV like he did until you watch it while listening to the music of Arnold Schoenberg. A conservative favorite of College Republicans back then was “Rock the Casbah” by The Clash, but that was long before 9/11. The guys wanted to invite our favorite VJ, Martha Quinn, on a date, and the gals all liked Alan Hunter from Birmingham, Alabama.

— Judge William H. Pryor Jr. serves on the United States Court of Appeals for the Eleventh Circuit. Last year, Judge Pryor cited the B-52s’ “Love Shack” in a decision.

Haynes seemed like a strong candidate when President George Bush first nominated him for the 4th Circuit seat in September 2003. Prior to becoming the U.S. Department of Defense's general counsel in 2001, Haynes served as GC of the Army in the early '90s and as associate GC of General Dynamics Corp. several years later. But Haynes' nomination soon became dogged by questions about his role in revising the military's interrogation guidelines.

So here’s a high-level summary of my previous eight posts on this matter:  The ABA investigation of Wallace was led by someone (Kim Askew) with clear biases (see here and here) and conflicts of interest and overseen by someone else (Stephen Tober) with clear biases.  The primary evidence that Askew offers in support of her conclusion that Wallace lacks judicial temperament is feeble and would appear not to reflect neutral principles that Askew would apply to nominees who litigated positions she favored.  Much of the other vague evidence (see here and here) is offered in violation of the ABA’s own procedures.  Askew ignored an obvious sign that the opposition to Wallace was orchestrated and therefore required additional scrutiny.  Thomas Hayward’s second (and evidently cursory) review was done in a manner that ensured that it did not provide any check on Askew (point 5 here).  And the ABA has resorted to various cheap gimmicks to advance its attack on Wallace. 

Quite a performance.  The only difficult question is whether the ABA’s testimony on Wallace is even sloppier and less persuasive than the ABA task force’s report on signing statements.

From this article in a Mississippi newspaper, it appears that someone is trying to divert attention from the manifest flaws in the ABA’s testimony on the Wallace nomination by crying about the supposed “leaking” of that testimony to me.  At the risk of some repetition from a previous post, let me offer a few points of clarification:

1.  In submitting its testimony, the ABA made a unilateral request that the testimony “remain confidential” until the ABA committee members appeared at the hearing to testify.  The ABA offered no rationale for its request other than its “general practice,” and there is nothing confidential about the testimony.  On the contrary, it was expressly intended to be made public—and it would have been made public no later than July 19 if the ABA had complied with its commitment to submit the testimony in a timely manner.  There was no confidential material, and there was no leak.

2.  There is no justification for the ABA’s request that its testimony be kept confidential for any period of time.  Insofar as the ABA’s request was deliberate, it can be understood only as an exercise in gamesmanship designed to prevent the ABA’s critics from having a timely opportunity to examine the testimony. 

3.  There are plenty of sources other than a Senate Judiciary Committee source from whom I might have received the testimony.  These sources would include, for example, some folks at the ABA.  I will state that I did not receive the testimony, directly or indirectly, from the nominee.  Beyond that, I will say nothing on this trivial question.

4.  The status of the underlying ABA committee report that was circulated to ABA committee members is a different matter.  I readily concede that there may well be legitimate confidentiality concerns about that report.  In particular, some witnesses may speak candidly about nominees only if they are assured of confidentiality.  (Of course, some witnesses may use the same protection to lie.)  The ABA, however, has completely stiffed Chairman Specter’s entirely reasonable request that the Judiciary Committee receive that report on a confidential basis.  It should not be permitted to use the belated release of its public testimony on Wallace as an excuse not to provide its underlying report to the Judiciary Committee on confidential terms.