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This document can be found at  http://policy.house.gov/documents/perspectives/aba.htm


House Policy Committee
Policy Perspective


Christopher Cox, Chairman

Anti-Death Penalty Stance Only Latest Evidence

How the ABA Became a
Left-Wing Lobbying Group

February 4, 1997

For decades, the American Bar Association (ABA) has held itself out as the voice of American lawyers. Based on its presumed non- partisanship and apolitical expertise, its views have received wide deference. And since the days of President Eisenhower, this deference has included a formal role in advising the President and the Senate as they select and review nominees for lifetime appointments to the federal courts. Unfortunately, this deference is unwarranted. In recent years, however, the ABA has adopted policy positions that are blatantly partisan, outside its area of expertise, or both--triggering a massive loss of membership. The ABA's latest political push--a call for a nationwide moratorium on the death penalty--is only an introduction to how out of touch the ABA really is.

Significantly Left of Clinton

On February 3, 1997, at the ABA's mid-year meeting in San Antonio, the ABA's policy-making House of Delegates voted 280-119 to end the execution of violent criminals "unless and until greater fairness and due process prevail." The ABA's action was taken over the vehement opposition of its own current President Lee Cooper and the Clinton Administration, which sent Deputy Attorney General Jamie Gorelick and other Justice Department officials to San Antonio to oppose it. The ABA simply brushed aside warnings by its own President that the resolution was a covert call for abolishing the death penalty itself, and by Deputy Attorney General Gorelick that the resolution could prejudice pending cases involving domestic terrorism--like the terrorist massacre in Oklahoma City.

Indeed, the ABA's action was described by proponents as largely a response to antiterrorism legislation enacted by overwhelming bipartisan majorities in the House and Senate in response to the Oklahoma City massacre. The key reform in that legislation--and the provision that apparently triggered the ABA's action--limited abusive and repetitive death penalty appeals that routinely consumed decades. It was based on recommendations prepared by a commission chaired by former Supreme Court Justice Lewis Powell, and was unanimously affirmed by the Supreme Court last year(1).

Unfortunately, the ABA has instead chosen to embrace discredited arguments repeatedly rejected by bipartisan majorities in Democratic and Republican Congresses, by Presidents of both parties, and by the Supreme Court. The ABA delegates claimed that the death penalty was imposed in a "haphazard maze of unfair practices" creating an unacceptable risk that innocent defendants would be executed-- despite what Justice Powell described as "unprecedented safeguards" imposed by the Court in capital cases, which "ensure a degree of care in the imposition of the sentence of death that can only be described as unique."(2) They reiterated claims that alleged racial disparities invalidated the death penalty- -claims rejected by the Supreme Court in McCleskey v. Kemp in 1987(3). They argued that the 1996 bipartisan habeas corpus reforms, together with Congress' decision to cut funding for death-penalty appeals, so undercut the fair representation of capital defendants as to make imposition of the death penalty unacceptably risky--even though the 1996 provisions for expedited procedures only permit states to use them if they also establish minimum standards for death-penalty counsel and guarantee that they would provide trial counsel for indigent capital defendants.

1. The challenge to the new law was brought by a prisoner convicted 14 years ago of kidnapping, beating, raping and murdering a teenage college student working as a waitress. He committed the crime in 1981, was convicted in 1983, appealed his conviction six times in state and federal court, and had his appeals twice rejected by the Supreme Court before arguing that the antiterrorism reforms would unfairly limit his right to appeal.

2. These arguments also ignore recent, exhaustive analyses of capital convictions that have completely discredited claims that innocent prisoners have been routinely--or even infrequently-- executed. For example, in 1993 Professor Paul Casell of the University of Utah Law School, formerly a federal prosecutor and Associate Deputy Attorney General, reviewed the evidence in testimony before the Senate Judiciary Committee, concluding flatly that "there is absolutely no credible evidence proving that an innocent person has been executed in at least the last 50 years."

3. Similar arguments on racial disparity were used to support the so-called Racial Justice Act of 1992, opposed by the National Association of Attorneys General and crime victims and law enforcement organizations across the country.

The ABA's action shows how far outside the mainstream it has become. The ABA is clearly out of line with America's lawyers, the American people, and the Clinton Administration itself(4).

The ABA's Pronounced Move to the Left

The death penalty moratorium is only the most recent example of the ABA's self-marginalization and bias. The politicization of the ABA was has been evident for a long time, beginning well before its then-President George Bushnell called the Republican majority in the 104th Congress "reptilian bastards."

In the past few years, the ABA has endorsed funding for the National Endowment for the Arts (with no restrictions); endorsed single-payer, Canadian-style health care plans (and later, as a fall-back position, the Clinton health care plan); endorsed the most extreme forms of racial set-asides; and opposed almost every element of the Contract With America that they considered.

The ABA's opposition to the latter included taking positions against regulatory reform, medical malpractice reform, product liability reform, effective death penalty reform, an end to frivolous prison litigation, and mandatory minimum sentences for drug and firearm offenses. And it included working to defeat the Securities Litigation Reform Act, which, nonetheless, won bipartisan veto-proof majorities in both the House and Senate.

In 1992, the ABA gave Anita Hill a special award for her "key testimony" against Supreme Court Justice Clarence Thomas. In that same year, ABA President Talbot D'Alemberte, on behalf of the ABA, wrote then-Presidential candidate Bill Clinton to excoriate Bush Administration efforts to fight crime. The ABA denied Vice President Dan Quayle an opportunity to address the ABA convention. And D'Alemberte called the Bush Administration's litigation reform efforts, presided over by former U.S. Court of Appeals Judge Kenneth Starr, "silly rhetoric."

The politicization of the ABA started in its House of Delegates. Historically, the House of Delegates restrained its advocacy to issues of special importance to its membership, stepping outside of this role only rarely to offer special expertise to legislators on complex legal issues. But today the House of Delegates' liberal agenda includes more than 750 policy positions--a book-length tome of some 100 pages. Most of these positions fall well outside the expertise of a professional association for lawyers, comprising instead a laundry-list of left-wing liberalism.

Emblematic of just how far the ABA has strayed from its presumed expertise, and how willingly it now becomes involved in every partisan escapade, is its formal opposition to the historic Medicare reforms included in the Balanced Budget Act of 1995. The ABA, echoing the AFL-CIO, dishonestly labeled the proposed Medicare spending increases "drastic cuts"--following the Clinton Administration's script to perfection. Likewise, the ABA either opposed outright or had "concerns" about every major element of the historic welfare reform law.

The ABA even opposed legislative efforts to end "welfare for lobbyists" (the Istook-McIntosh- Ehrlich bill)--small wonder, since their taxpayer-supported arm has a line-item for "government affairs," which is a euphemism for lobbying.

The ABA either opposed outright or had "serious concerns" about the historic illegal immigration reforms passed by the House and Senate. They specifically opposed efforts to more swiftly deport criminal aliens in both the immigration and anti-terrorism bills. Naturally, the ABA opposed California's landmark Proposition 187 immigration reforms, approved by the voters 2-1.

The House of Delegates, which adopts these positions without any attempt to proportionately represent the views of the ABA's membership, is stacked with special interests. The delegates are not allocated by weight of membership of their state and local associations, and there is no one-person-one vote principle. For example, the Florida Bar Association, with 40,000 members, recently had only eight delegates--one for every 5,000 lawyers--while small groups such as the National Lesbian and Gay Law Association were granted one delegate for as few as 160 ABA members. (This disproportionate influence is magnified further by the fact that some lawyers are members of several represented groups.) Each of these special-interest delegates is entitled to vote on every aspect of the ABA agenda. 4. The report accompanying the moratorium resolution conceded the total irrelevance of the ABA's positions to the current political consensus: "Not only have the ABA's existing policies [calling for various limitations on the death penalty] generally not been implemented, but...more critically, the federal and state governments have been moving in a direction contrary to these policies."

 

The ABA's Taxpayer-Funded Lobbyists

To support the House of Delegates' left-wing agenda, the ABA maintains 10 paid lobbyists. Their full-time occupation is putting behind-the-scenes pressure on the people's elected representatives to enact into law the ABA's over 750 legislative positions. The ABA's endorsement of a death penalty moratorium means that these lobbyists will soon be pressing Congress to annul the historic, bipartisan death penalty reforms adopted just one year ago.

The ABA's Fund for Justice and Education receives $13 million from the government. It then spends $6 million--nearly half its taxpayer funding--on "public service, governmental affairs." Until her recent appointment to a Clinton Administration post, Democratic lawyer Brooksley Born chaired this taxpayer-funded special interest lobby for three years.

A large number of ABA members are understandably opposed to the advocacy of liberal issues that divide, rather than unite, the legal profession. As former Assistant U.S. Attorney General Ted Olson notes, the ABA's left-wing political activism creates a wrenching dilemma for those lawyers who wish to participate in the organized bar:

On the one hand, I want to continue to be a part of an organization such as the ABA, and I would hate to leave the power and authority of the ABA in the exclusive control of those who represent wholly different points of view than mine. On the other hand, I hate giving my resources--especially my time and name--to an organization that persists in taking positions with which I do not agree and on subjects with respect to which I do not need a spokesperson or advocate.

At an increasing rate, members have decided that the latter concern is of most significance. Since 1992, the ABA has suffered a net loss of some 20,000 members. In the midst of the ABA's partisan assault on the newly-elected Republican Congress, during the 1994-1995 membership year alone, there was a 15.9% decline in membership. Unfortunately, these developments have left the American Bar Association far less representative of American lawyers, and even more liberal, than ever before.

The ABA's Increasingly Illegitimate Role in Judicial Selection

In 1953, President Eisenhower--not a lawyer himself--invited the ABA to serve in a quasi- official role in reviewing judicial appointments. Its job, executed through its Standing Committee on the Federal Judiciary, was to provide objective, non-partisan peer review of individuals nominated to serve on the federal bench, strictly limiting the evaluation to "professional qualifications."

Since Eisenhower, every President and Congress, to a greater or lesser extent, has solicited the Standing Committee's evaluations. Moreover, those evaluations are often outcome-determinative. Judicial nominees rated "Not Qualified" by the ABA are almost always withdrawn by their sponsors, giving the ABA a "de facto" veto power. At the same time, however, the ABA's steady drift leftwards during the last 20 years has increasingly politicized its evaluations.

Indeed, the ABA has even altered its rules to allow itself greater leeway to be overtly political. When President Eisenhower asked the ABA's advice, its rules prohibited political or ideological tests, and restricted judicial evaluations to a nominee's "competence, integrity, and judicial temperament." But in 1980, the ABA changed its rules to read: "The Committee's evaluation of potential nominees to these courts is directed primarily to professional qualifications" (emphasis added.) They then repealed the requirement that the ABA shall "not attempt to investigate or report on political or ideological matters with respect to the prospective nominees." The new rules authorized the ABA to investigate and comment on a prospective nominee's political or ideological philosophy if (in their obviously subjective judgment) he or she holds "extreme views." And they added such nebulous criteria as "compassion" and "sensitivity," giving plenty of cover to political panelists. As Judge Laurence Silberman trenchantly observed, "insensitivity" became a code word for "political views identified with the conservative wing of the Republican Party," or alternatively, "notions of judicial restraint."

After 1980, as a result of these purposeful rule changes, ideology and politics were expressly introduced into ABA evaluations. In 1987, acting under their nebulous new standards, four of the ABA's panelists evaluated U.S. Court of Appeals Judge Robert H. Bork--who had never once been reversed by the Supreme Court--as "Not Qualified." Yet Bork had attained the summit of his profession in each major area of legal endeavor--as a partner at a renowned national law firm, as a tenured professor at Yale Law School, as Solicitor General of the United States, and as a federal appellate judge. One of the four panelists who flunked Judge Bork now serves as ABA President-Elect. He is Jerome J. Shestack, a longtime supporter of Senator Joseph Biden, the Democrat Senator who led the political assault on Judge Bork, and who disingenuously called the House of Delegates' resolution favoring a death penalty moratorium "not political."

In 1988, the ABA again changed its rules to permit consideration of political or ideological philosophy whenever it "may bear upon other factors." With this change, any patina of objectivity was lost. The matter reached its ultimate logical conclusion in 1989, when even that restriction on consideration of "political or ideological philosophy" was dropped altogether. The current rules simply explain that the Standing Committee will continue to evaluate judicial nominees exactly as it has in the past.

In truth, the Committee's institutional biases are now so clear that they require little overt expression. Witness the partisan political involvement that now seems to be a prerequisite for service on the Standing Committee. The Washington Post recently browsed through FEC reports and found that despite longstanding rules prohibiting political activity by committee members, 11 of the 15 ABA panelists who evaluate judges have contributed to national political candidates and causes since 1991. Democrats received 450% as much of this ABA political money as Republicans. In the past five years, two of the Committee's members alone showered Democrat politicians with $25,000 in cash contributions. Three of the current Committee members have violated the requirement not to "contribute to any federal election campaign or political activity" during their tenure.

Liberal ABA = Liberal Judges

Thanks to the ABA's liberal bias, left-wing judicial activists are routinely favored over nominees who believe judges should interpret the law, not make it. Consider:

1. With similar qualifications, liberals get higher ABA ratings. An analysis by Daniel E. Troy, a partner at the D.C. law firm Wiley, Rein, and Fielding, compares ratings given to some of the strongest judges on the U.S. Court of Appeals for the D.C. Circuit to the ratings given liberals with similar qualifications. The liberals invariably received higher ratings.

For instance, Patricia Wald--a liberal Carter appointee--had eleven years' experience in "public- interest" law before joining the Carter Administration for one year. Laurence Silberman, a conservative Reagan appointee, had a twelve-year career in private practice, as well as serving as the Labor Department's Solicitor and Under Secretary, and as Deputy Attorney General of the United States. Wald received the rating "Well Qualified." Silberman received a tenuous "Qualified/Not Qualified" rating.

Or consider the cases of James Buckley and Abner Mikva. Mikva, a liberal Carter appointee, worked in private practice for 18 years (during 10 of which he had also served as a Democrat member of the Illinois legislature). He served as a liberal Democrat in Congress for nine years, and then as a lecturer at Northwestern University for two years. Buckley, a conservative Reagan appointee, worked for seven years in private practice, and served for six years as a conservative Republican in the U.S. Senate. He also served as Undersecretary of State, and as President of Radio Free Europe/Radio Liberty. Mikva received the ABA's highest rating; Buckley received a "Qualified/Not Qualified."

These examples could be multiplied many times over. Guido Calabresi, Ralph Winter, Diane Wood, Richard Posner, William Fletcher, and John Noonan are all distinguished academics. But Clinton nominee Calabresi received a split "well qualified/qualified" rating, while Reagan nominee Winter, his colleague at Yale Law School, received only a "qualified" rating. Clinton nominees Wood and Fletcher were rated "well qualified"; Reagan appointees Posner and Noonan received split "qualified/not qualified" ratings.

As President, Bill Clinton even managed to receive a "Qualified" rating from the ABA for nominee Charles "Bud" Stack, whose main qualification for the U.S. Court of Appeals was his success as Clinton's seven-million-dollar Florida fundraiser. Stack's knowledge of constitutional law was so scanty that he couldn't answer the Senate Judiciary Committee's questions to him about landmark Supreme Court cases of recent years, because he never heard of them.

Not surprisingly, the Clinton Administration is quite fond of its track record with the ABA, often claiming that their appointees receive higher ratings than those of Presidents Reagan and Bush. With left-wing friends like the politicized ABA Standing Committee, it's small wonder.

2. The ABA's left-wing bias has a chilling effect on judges supporting judicial restraint. When judges refuse to advocate the ABA's liberal agenda, or simply recuse themselves from ABA proceedings, they know full well they may be sacrificing their future ABA ratings. As Judge John Walker of the Second Circuit Court of Appeals has said: "[O]ne should understand that the ABA and the judiciary, particularly the federal judiciary, have had long-standing connections and interrelationships. Just as the Senate Judiciary Committee is well aware of the role that the ABA's Standing Committee on the Federal Judiciary has played over the years in rating candidates for federal judicial office, the committee is also aware that judges have traditionally been active members of the ABA."

Former U.S. Attorney General Dick Thornburgh is still more direct. By taking positions on so many highly-charged issues, the ABA fosters a view that it "will look more favorably on judicial candidates whose views are aligned with ‘the ABA view.' "

Conclusion

The politicization of the ABA, its Presidents, its House of Delegates, and its judicial review process has squandered its credibility both with the public and with its dwindling membership. The ABA's call for a moratorium on the death penalty is just another indication of how far out of step the ABA is with mainstream America. This effect has been magnified by the mass resignations from the organized bar by lawyers and judges repelled by the Association's blatant political bias. This week's action on the death penalty--denounced by both the Clinton Administration and the Congress--will only serve to marginalize the American Bar Association even more.


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