Left, Right or Center?

Executive Director's Report

The ABA is about process, not politics

November 2008 Issue
By Henry F. White Jr.

Henry F. White Jr.
Photo by Paul Berg

With political news sure to dominate the headlines this month, it’s a good time to consider whether the ABA is, as many of our critics contend, a liberal organization.

Addressing this view will be essential in our efforts to increase membership. All members of the legal profession, regardless of their political views, should feel welcome in the ABA.

Those who claim the ABA leans left often point to two events: the House of Delegates’ passionate debates on abortion in the early 1990s and four dissenting votes to the ABA Standing Committee on the Federal Judiciary’s 1987 finding that Judge Robert Bork was well-qualified to serve on the U.S. Supreme Court.

These critics ignore ABA actions that could be viewed as leaning right. For instance, the ABA has vigorously fought on behalf of corporations by opposing the Department of Justice’s charging guidelines, securing changes earlier this year that expressly bar prosecutors from forcing organizations and their employees to waive fundamental protections during investigations. And the committee unanimously found both Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. to be well-qualified to serve on the Supreme Court.

Do those actions make the ABA a conservative organization? No more than the earlier actions make us a liberal one.

WE’RE A FORUM

By focusing on outcomes, the ABA’s critics miss the fundamental point. Like the justice system itself, the ABA is concerned most of all with process. We’re a forum for lawyers to air opposing views. We believe that if the rules of those debates are fair—both in the justice system and in our own association—the outcomes will almost always be the right ones.

The 556-member, policy-making House of Delegates is a good example of our commitment to a fair process. Most of its members are state and local bar association delegates, and their political views are as varied as those of the U.S. population as a whole. That diversity is one reason why the ABA can credibly claim to be the voice of the American legal profession.

Likewise, the Standing Committee on the Federal Judiciary is designed to ensure a fair process, rather than a particular outcome. The 15-member committee interviews dozens of lawyers who know a given nominee. Its work is independent of the rest of the ABA, including the House of Delegates and its policy positions.

Both Democrats and Republicans have referred to this as the “gold standard” for judicial evaluations. For almost 50 years, the committee’s work was conducted before a nomination was made public. But in 2001, the White House announced it was ending that practice. We will advise the next president, regardless of his party, that a fair process should continue and that the ABA stands ready to serve in whatever manner he sees as most helpful.

Sometimes fighting on behalf of a fair process is itself viewed as political, as in the ABA’s recent defense of the right of habeas corpus. But to avoid sacrificing principle, we must sometimes give the devil his due.

Sir Thomas More defended the rule of law during the reign of Henry VIII. In Robert Bolt’s play A Man for All Seasons, More asks his daughter’s suitor, “What would you do? Cut a great road through the law to get after the devil?”

“I’d cut down every law in England to do that!” the suitor replies.

More responds: “Oh? And when the last law was down, and the devil turned round on you—where would you hide, ... the laws all being flat? ... If you cut them down, ... do you really think you could stand upright in the winds that would blow then? Yes, I’d give the devil benefit of law, for my own safety’s sake.”

Providing a forum for debate and being an honest broker of information is not political. It is the essence of the legal profession. And it’s at the heart of connected, empowered and engaged membership in the ABA.

Comments

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Posted by J.D. - Nov 20, 2008 04:46 pm CST

I think the ABA is missing the point. Whenever there is an issue of political importance, the ABA always takes the activist position which advances the liberal agenda.

Take immigration. The ABA has a choice:

(A) stand up for the rule of law, citizenship, and sovereignty by opposing any policy that allows individuals to flaunt our laws;

or (B) support open-border anarchy and amnesty.

Putting aside the question of whether the ABA should be operating as an activist group at all (which it is by taking positions and “priorities”), the ABA has decided to go with Option B on immigration.

In an UNBELIEVABLE display of bias last year, the ABA held a panel discussion at the National Press Club. Most panels include 4 to 6 speakers; this one had TWELVE. One would think that with so many panelists, perhaps someone would suggest that mass amnesty would be a bad thing.

But no.

The entire panel had the same position: letting people get away with breaking the law is good.

Even though the left-right divide on this issue is not entirely applicable (it’s an elite v. public divide where the wealthy elite want amnesty, and the public does not), it is clear that the ABA had no interest in evaluating the position of enforcement, and therefore made no effort at balance.

And as a legal institution, that is entirely sad.

Who cares if the ABA found Alito and Roberts to be qualified? The ABA said the same of Ginsberg and Breyer. This is all irrelevant. All of them are “qualified” to serve on the Court.

It’s the policy positions at issue, here.

Where has the ABA supported the proposition of limited government? Low taxes? The idea that we have freedom OF religion, not freedom FROM religion? The idea that foreign law should never be used in American courts? Those would be conservative positions.

We could walk down the Constitution for that matter. On the First Amendment, it seems the ABA will be supporting the so-called Fairness Doctrine in order to get the gov’t to regulate speech (the ABA has in the past from what I’ve been able to unearth). And do I need to get started on the Second Amendment? The ABA’s Standing Committee on “Gun Violence” has a title that on its own gives away the agenda—why is it not called the Standing Committee on the “Right to Bear Arms”? Yep, there’s a liberal agenda in this organization.

I actually find this article embarrassing. The problem for liberals is that they don’t even begin to understand bias as a concept, and consequently seem foolish when trying to deny it.
Posted by JD - Nov 22, 2008 01:32 pm CST

I forgot, human rights apply to all humans. And politics makes law. So lawyers should be involved both in the political process and defending human rights.

I can be so shortsighted sometimes.
Posted by J.D. - Nov 26, 2008 09:59 am CST

^ You make no sense, and obviously have no response to any of my arguments.