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                             J. MADISON
THE FEDERALIST SOCIETY FOR LAW AND PUBLIC POLICY STUDIES                                                          FEBRUARY 2003

Q. What will be the most important ini-       of her bar year, responding to the media       to states that elect their state’s highest
tiatives for your upcoming presidency,        and trying to work through that. Robert        courts that some consideration be given
and have you mapped out any plans for         Hirshon was focusing on loan forgive-          to state-wide financing for those races
achieving them?                               ness and looking at the issue of billable      where you have contested elections.
                                              hours when the terrorists attacked             And so, those will be the four initiatives
A. I have found that many of the initia-      America on September 11. He was dis-           that I will address.
tives undertaken by our past presidents       tracted in large measure away from his              As it relates to presidential pro-
have been worthy of another year’s focus.     initiatives.                                   grams, there will be three. One will be in
But as you know, as each new president              Both initiatives, I thought, were very   October, put on by the Council of Racial
comes in, they have a different initiative.   meritorious and important. So, I repre-        and Ethnic Justice, headed up by Charles
      I’ve watched over the last several      sented to the Nominating Committee that        Morgan, General Counsel of BellSouth
years how, for example, President Martha      I would remain flexible, not knowing what      who’s the chair of that committee, to
Barnett was focusing on the death pen-        the future might bring, and that I was         take a look at and focus in on promot-
alty, advocating the American Bar             going to go back, revisit, and set forth       ing diversity on behalf of lawyers of
Association’s policy for a moratorium.        initiatives, starting with the diversity is-   color. The Commission on Women, in
Then President Bush, as was his right,        sue advanced by President Bill Paul dur-       the spring, will be dealing with trying
made the decision that the American Bar       ing his bar year of 1999 through 2000, as      to remove the remaining glass shreds
Association would no longer be privy, in      well as the death penalty and loan for-        in the ceiling that women still find they
advance, to his nominees for federal          giveness. Also, President A. P. Carlton        cut their fingers on trying to advance
courts. That set off somewhat of a media      is working on the issue of judicial inde-      in our profession. Then, we will cel-
firestorm, and she was distracted for most    pendence, with a strong recommendation                              continued on page 17

   In this issue. . .                         POLICY POSITIONS DUE FOR
   2    Notable Resolutions from
                                              CONSIDERATION AT MID YEAR MEETING
        ABA 2002 Annual Meeting               The ABA House of Delegates will con-           less, to name just a few of the subjects
                                              sider a number of potentially contro-          highlighted here.
                                              versial resolutions at its midyear meet-
    3   The ABA and Corporate                 ing in Seattle this February. The House        War Against Terrorism
        Governance                            votes on these resolutions will deter-         Enemy Combatants. Proposed Recom-
                                              mine whether the Association may en-           mendation 109—introduced by the Crimi-
                                              gage in lobbying or other forms of ad-         nal Justice Section and the Section of In-
    3 The ABA and the Class                   vocacy in some new areas. In addition          dividual Rights and Responsibilities—
        Action Task Force
                                              to proposals relating to the War Against       supports the view that enemy combat-
                                              Terrorism, other recommendations               ants who are lawfully present and de-
    4 The ABA and State                       touch upon criminal procedure, civil           tained in the United States “be afforded
        Judicial Selection                    rights, domestic violence, capital pun-        the opportunity for meaningful judicial
                                              ishment, and the rights of the home-           review of their status” and “not be de-
                                                                                                                  continued on page 10
NOTABLE RESOLUTIONS FROM                                                                    A newsletter of The Federalist Society for
                                                                                            Law and Public Policy Studies, published
                                                                                            twice each year.

ABA 2002 ANNUAL MEETING                                                                     Directors/Officers
                                                                                            Steven G. Calabresi, Chairman
A vigorous debate over passing a reso-        ernors in 1997), this is the first time the   David M. McIntosh, Vice Chairman
lution concerning federal judicial con-       Senate Judiciary Committee has been           Gary Lawson, Senior Advisor
                                                                                            Eugene B. Meyer, Director
firmations took place at the ABA’s An-        singled out by the Association as respon-      ...
nual Meeting last August in Washing-          sible for the pace of the confirmations       Brent Hatch, Treasurer
                                                                                            T. Kenneth Cribb, Counselor
ton, D.C.                                     process. The report states, “The present
                                              resolution focuses with greater empha-
                                                                                            Board of Visitors
Initially two recommendations concern-        sis on the role of the Senate Committee       Robert H. Bork, Co-Chairman
ing judicial nominations were presented.      on the Judiciary as a cause of blockage       Orrin G. Hatch, Co-Chairman
                                                                                            Lillian BeVier
Resolution 112, offered by C. Boyden          in the confirmations process: The no-         C. Boyden Gray
Gray, called upon: 1) the President of the    tion that that Committee, by the simply       Lois Haight Herrington
                                                                                            Donald Paul Hodel
United States to continue to promptly         expedient of refusing to hold timely          Harvey C. Koch
nominate candidates to the federal bench;     hearings may avoid confirmation pro-          Edwin Meese, III
                                                                                            Andrew J. Redleaf
2) the U.S. Senate Judiciary Committee to     ceedings in the full Senate, is simply        Wm. Bradford Reynolds
clear nominees for full Senate confirma-      unacceptable to our notion of an ap-          Gerald Walpin
tion within six months of receipt of a        propriate and constitutional nomina-
nomination, absent extraordinary cir-         tion process.”                                Staff
cumstances; and 3) the full Senate to                                                       Eugene B. Meyer
promptly exercise its advise and con-         Several resolutions concerning the war
                                                                                            Executive Vice President
sent function in voting upon or reject-       against terrorism were approved. Rec-         Leonard A. Leo
ing nominees. Recommendation 10A,             ommendation 115B was approved, which
                                                                                            Lawyers Division:
offered by the Kentucky Bar Associa-          urged the protection of the rights of im-     Dean A. Reuter, Practice Groups Director
tion and Section of Litigation, recom-        migration detainees by disclosing their       Lisa A. Budzynski, Lawyers Chapters Director
                                                                                            David C.F. Ray, Associate Director
mended that the Senate Judiciary Com-         names and whereabouts; access to at-          Joel Pardue, Associate Director
mittee “promptly…clear or reject nomi-        torneys and family members; promptly          Juli Walker, Assistant Director
                                                                                            Jessica King, Assistant Director
nees for full Senate action and the Sen-      charging and when appropriate releasing
ate of the United States…to advise and        detainees; and custody hearings with the      Student Division:
                                                                                            Peter K. Redpath, Director
consent to or reject the nominees.”           opportunity for appellate review. The         Hanalee Hawkins, Assistant Director
                                              Standing Committee on Law and National
                                                                                            Finance Director
At the Board of Governors meeting, the        Security had voiced serious concerns          Douglas C. Ubben
issue of whether the ABA should recom-        about this resolution. Resolution 117A
mend a timeline was vigorously debated,       was approved, recommending that state         Patty Price, Director
with incoming ABA President-Elect Den-        governments “ensure that an unmarried         Troy Felver, Assistant Director
nis Archer and former ABA President           surviving partner who shared a mutual,        Membership Director
Martha Barnett expressing concerns            interdependent, committed relationship        C. David Smith
about mandating a time for the Senate to      with a victim of terrorism or other crime     Office Manager
review and vote upon the president’s ju-      can qualify for crime victim compensa-        Rhonda Moaland
dicial nominees. Governor Blake Tartt, a      tion and assistance funds provided by
member of the ABA’s Standing Commit-          that government to eligible spouses.”         ABA WATCH PROJECT
                                                                                            Leonard A. Leo, Director
tee for the Federal Judiciary, spoke out in                                                 Lisa Budzynski, Managing Editor
favor of the proposal. Ultimately, the        The Association entered the cloning de-       Jessica King, Editor
                                                                                            Joel Pardue, Editor
Board of Governors voted to transmit          bate with approval of Recommendation
Resolution 10A with a recommendation          117B, which states the ABA’s opposition       Published by:
                                                                                            The Federalist Society for Law and Public
that it be adopted rather than Resolution     to “governmental actions that would: 1)       Policy Studies, 1015 18th Street, N.W.,
112. Thereafter, Boyden Gray withdrew         prohibit scientific research conducted for    Suite 425, Washington, D.C. 20036
                                                                                            (202) 822-8138
his resolution and supported Revised          therapeutic purposes, including research
Recommendation 10A, which was ulti-           involving cell nuclear transfer that is not   Website:
mately passed by the House of Delegates.      intended to replicate a human being, pro-
                                              vided that such research is conducted in
Although the ABA has passed prior             conformity with accepted research, ethi-      Comments and criticisms about this
resolutions concerning judicial confir-       cal, and legal safeguards; or 2) penalize     publication are most welcome. You
mations (by the House of Delegates in         individuals or research entities that par-    can email us at
1990 and 1998 and by the Board of Gov-        ticipate in such research.”
February 2003                                                      2                                                   ABA WATCH
THE ABA                         AND           CORPORATE GOVERNANCE
A series of corporate scandals in the year            attorney’s “up the ladder” allegations to           ABA Task Force on
2002 at Enron, Global Crossing,                       the corporation’s executives and Board              Corporate Responsibility
WorldCom, Adelphia, and Tyco, along                   of Directors were ignored.                          On March 27, 2002, then-ABA President
with several other corporations, provoked                                                                 Robert Hirshon announced the formation
calls for reform and increased standards              The American Bar Association saw a role             of the ABA Task Force on Corporate Re-
for corporate governance from across the              for itself in shaping these proposals and           sponsibility. The Task Force was as-
legal, public policy, and corporate spec-             in carving out the proper role for attor-           signed with examining issues relating to
trums. The resulting passage of the                   neys in reporting and preventing corpo-             corporate responsibility arising out of the
Sarbanes-Oxley corporate responsibility               rate wrongdoing. Through the creation               bankruptcy of Enron, with an emphasis
legislation in July created some of the               of two task forces, the ABA has provided            on studying the framework of laws and
most sweeping reforms ever signed into                its insights and analysis into Sarbanes-            regulations and ethical principles govern-
law, affecting not only corporate execu-              Oxley, particularly Section 307 concern-            ing the roles of lawyers, executive offic-
tives, but accountants, auditors, and law-            ing the responsibility of lawyers to re-            ers, directors, and other interested par-
yers. One of the most debated initiatives             port corporate misconduct. What follows             ties. Ethical rules governing lawyers were
would require attorneys to report to the              is a detailed analysis of the ABA’s role            previously promulgated by state courts
Securities & Exchange Commission evi-                 in the process and its ideas respecting             and frequently modeled upon the ABA
dence of corporate wrongdoing, if the                 reform.                                                                       continued on page 6

THE ABA                        AND THE                   CLASS ACTION TASK FORCE
With class action reform legislation due back         The Task Force is assigned to “study and            eration of class action claims of question-
on the agenda for the 108th Congress, the             make recommendations on the one of the              able merit in a handful of states that have
ABA’s Task Force on Class Action Legisla-             most controversial areas of the law – class         produced huge damage awards including
tion is busy finalizing its proposals for class       actions.” It “will consider issues arising from     record-setting punitive damages. The ef-
action reform. Where does the Task Force’s            proposed legislation that includes expand-          fect of this trend is that a single local judge or
proposals currently stand with respect to             ing federal court jurisdiction over class ac-       jury can have significant impact on the flow
the debate occurring in Washington?                   tion lawsuits.” The Task Force “will also           of interstate commerce and national commer-
                                                      consider proposals for changes in class ac-         cial policy.” The House bill also established
Members of the Task Force                             tion practice that affect which court system        a consumer class action bill of rights.
Last August, ABA WATCH conducted a                    large class actions belong in. These include
preliminary look at the Task Force by profil-         overlapping class actions resulting from            Task Force members were asked to focus
ing its members (See: http://www.fed-                 suits on the same matter being filed in differ-     on the following issues when developing for more information). The Task               ent courts at the same time.”                       its recommendations: Article III authority
Force is chaired by Edward Sherman, law                                                                   for minimal diversity jurisdiction; the bill’s
professor and former dean of the Tulane               Interim Report                                      impact on state courts and federalism issues;
Law School. Fifteen attorneys and two fed-            Last August, at the ABA’s Annual Meet-              adequacy of exceptions in the bill; identifi-
eral judges, one a Clinton appointee and the          ing, the Task Force released its interim re-        cation of class members who are allowed to
second a George W. Bush appointee, com-               port. The report primarily focused on pro-          remove; use of Multi-district Litigation Pan-
pose the task force. Members represent the            posed legislation from the 107th Congress:          els; and the possibility of amending the federal
Tort and Insurance Practice Section, the              the “Class Action Fairness Act of 2001” and         rules, rather than adopting new legislation.
Antitrust Section, the Labor and Employ-              the “Class Action Fairness Act of 2002.”
ment Section, the Commission on Women                 (For more information on these acts, see ar-        Proponents of the legislation argue that ex-
in the Profession, the Business Law Sec-              ticle from August 2001 ABA Watch at http:/          panding the concept of federal diversity ju-
tion, the Health Law Section, the Litigation          / for more information.)             risdiction over interstate class actions would
Section, the ABA Commission on Racial and             The report was discussed at numerous con-           curb many problems with the current sys-
Ethnic Diversity in the Profession, and the           ference calls and meetings last spring.             tem, including forum shopping aimed at
Judicial Section, as well as two members-at-                                                              bringing nationwide claims in local jurisdic-
large. According to the interim report re-            According to the Task Force, the “stated            tions that tend to produce high verdicts.
leasedbytheTaskForce,itsmembership, “while            purpose of the Class Action Fairness Act is         Furthermore, the intent of the Framers un-
diverse,isnotnecessarilyevenlydividedinterms          to remove from state courts class action liti-      der Article III of the Constitution would be
of plaintiff-defendant perspectives and ap-           gation that is national in character, with a        honored, as they intended the concept of
proaches to class action practice. At its first       view toward cutting back on forum-shop-             federal diversity jurisdiction to ensure that
meeting, the Task Force agreed not to operate         ping that adversely affects national com-           local bias would not impact interstate dis-
on the basis of majority vote but to seek con-        mercial activity. As articulated by support-        putes. This would also protect the inde-
sensus on the positions taken in its final report.”   ers, the impetus for the legislation is a prolif-                             continued on page 5
ABA WATCH                                                                    3                                                      February 2003
THE ABA                    AND         STATE JUDICIAL SELECTION
At its 2002 Annual Meeting, the Ameri-          tem, while also considering means to im-      The Standards Committee found “[t]here
can Bar Association commenced a major           prove the election system.                    has in recent years been an alarming in-
new project to promote judicial indepen-                                                      crease in effort by special interests to in-
dence in the state courts, the ABA Com-         In 1997, the ABA issued a report con-         fluence the outcome of judicial elections
mission on the 21st Century Judiciary. The      cerning “An Independent Judiciary,”           through both financial contributions and
project’s mission would be to “ensur[e]         authored by its Commission on the Sepa-       attack campaigning.” While some states
fairness and impartiality through indepen-      ration of Powers and Judicial Indepen-        did have reliable selection criteria, others
dence and accountability” in the judiciary.     dence. The Commission was created to          did not, resulting in “the erosion of the
The commission is the brainchild of ABA         study judicial independence and ac-           public’s respect for and confidence in the
President A.P. Carlton, the former chair-       countability. Although the report prima-      administration of justice.” Furthermore,
man of the ABA Standing Committee on            rily focused on the federal judiciary, a      judicial systems with elections have been
Judicial Independence.                          section on judicial independence and          corrupted, as “politics and money give
                                                state courts concluded that “threats to       the appearance of partiality and with that,
The effort is the latest in a long line of      judicial independence and its goals are       the erosion of justice.”
ABA initiatives dealing with state judi-        greater in many sate court systems than
cial selection systems. While the ABA           in the federal judiciary” largely due to      The model standards state “the primary
has long promoted merit selection as the        “serious ethical problems” in judicial cam-   goal of individuals or official bodies who
best method to appoint judges, this new         paign fundraising. To support this find-      are responsible for judicial appointments
project’s mission primarily concerns ju-        ing, the ABA quoted observations from         should be a qualified, inclusive, and in-
dicial elections. Why has the ABA reori-        state court judges, the American Judica-      dependent judiciary.” The standards task
ented its efforts, rather than step up its      ture Society, and bar leaders who do not      a “judicial nomination commission” with
lobbying to promote merit selection?            support judicial election systems. The        providing the appropriate appointing au-
How much success has the ABA                    report printed two comments from those        thority with candidates researched in “an
achieved in its efforts to promote merit        who maintain that elective systems do         open, regularized, and independent man-
selection? What does the general public         not threaten judicial independence. The       ner” from the “widest segment of the po-
think about judicial elections? Are judi-       report continued to support the ABA’s         tential candidate pool” by a “broad array
cial elections inherently corrupt? ABA          position that merit selection of state        of selection criteria.” Alternatively, states
WATCH examines these questions in the           judges is the best method of state judi-      could adopt an independent, bipartisan
context of the ABA’s efforts in this area,      cial selection. It also recommended that      “judicial eligibility commission” to “re-
along with a review of where the Asso-          states with elective systems consider         view the qualifications of judicial candi-
ciation plans to move forward.                  adopting the April 1997 ABA Standing          dates pursuant to recognized selection
                                                Committee on Ethics and Professional          criteria.”
The ABA & Merit Selection                       Responsibility’s proposed amendments
The ABA has supported merit selection           to the Commentary to Canon 5C(2) of the       The model standards also delineate rules
since 1937 as “striking the right balance       Model Code of Judicial Conduct, which         concerning “endorsing authorities” (i.e.
between judicial independence and ac-           endorse merit selection and suggest that      political party officials or parties), who
countability.” A 1972 resolution before         campaign contributions made by lawyers        would pick candidates from lists devel-
the House of Delegates reaffirmed sup-          or others who appear before the judge         oped by judicial eligibility committees rep-
port of merit selection and retention of        raise questions about a judge’s impartial-    resentative of a “qualified, inclusive, and
judges and supported bar association par-       ity and may be grounds for recusal.           independent” judiciary. Finally, the stan-
ticipation in the judicial selection process.                                                 dards call for states to establish a “reten-
In 1982, the ABA advocated the estab-           In 1999, the ABA’s Standing Committee         tion evaluation body” to determine
lishment of state judicial monitoring com-      on Judicial Independence established a        whether a judge should be retained in a
missions. On five occasions between             Commission on State Judicial Standards,       retention election.
August 1972 and August 1984 the House           which was charged with drafting model
of Delegates approved recommendations           standards for the selection of state          The 2000 ABA model standards for judi-
supporting merit selection and encour-          judges. The Standards Commission,             cial selection also outline what selection
aging bar associations in jurisdictions         chaired by Edward W. Madeira, Jr., drafted    criteria should be taken into account. Ex-
where judges are elected to lobby for the       a report and recommendation that was          perience, integrity, professional compe-
adoption of a merit selection system. Yet       adopted by the House of Delegates at its      tence, judicial temperament, service to the
another resolution was passed in 1994,          2000 Annual Meeting. The model stan-          law, and contribution to the effective ad-
urging states and local bar associations        dards address the qualifications for be-      ministration of justice are listed, along
in judicial election jurisdictions to lobby     coming a judge and the composition of         with additional criteria for retention elec-
for the adoption of a merit selection sys-      judicial reviewing groups.                                          continued on page 14

February 2003                                                        4                                                 ABA WATCH
continued from page 3                                 Thomas Henderson of the Lawyer’s Commis-               dorsed. But it also is quite possible that some
                                                      sion for Civil Rights also opposes the bill, fear-     of the ideas in this area generated by ATLA
pendence of the judiciary, as an impartial, uni-      ing that federal courts’ caseload would signifi-       (Association of Trial Lawyers of America)
form, and efficient venue would be available to       cantly increase as a result of the bill. The report    could be proffered. These include increasing
decide inter-state disputes.                          also quoted Edward O’Connell of the National           the jurisdictional amount threshold in the class
                                                      Center for State Courts, who claims that there is      action bill to as high as $25 million, and leaving
The Task Force interim report summarized the          no evidence that states could not handle the           smaller class actions to be heard in state courts.
views of George Pickle of Shell Oil Company           workload from class actions. Brian Wolfman             Also, exemptions could be provided against
and the Defense Research Institute. Certain           of Public Citizen expressed federalism con-            removal for class actions in which two-thirds
venues, such as Alabama; Cook County, Illi-           cerns, but stated that duplicative federal-state       of members are from a single state. Such an
nois; Jefferson County, Mississippi; and Jeffer-      class action reform and a lack of judicial scru-       approach would create significant uncertainty
son County, Texas, have been a magnet for             tiny in settlements might be areas of agree-           over how the ABA lobbying apparatus would
many class actions. Rulings in these local courts     ment between the plaintiffs and defense bars.          approach discussions on Capitol Hill. For ex-
have set national standards that upset laws in                                                               ample, if a Congressional bill failed to take ac-
other states, according to Pickle. Forum-shop-        WhatNow?                                               count of some of the caveats that might be
ping for plaintiffs-friendly jurisdictions with lax   KeyABA leadership has been urging the Task             offered, could the ABA simply oppose the
enforcement of class certification rules would        Force to complete its work as quickly as pos-          legislation? How would particular objections
be much less likely if cases involving plaintiffs     sible, hoping to have something to present             be balanced against the fact that there appears
or defendants from different states must be re-       before the House of Delegates at the midyear           to be general consensus that some reform is
moved to federal court.                               meeting in February. It appears from the initial       needed?
                                                      report, and from some of the inside discus-
JimWootton, formerly of the U.S. Chamber In-          sions that have trickled into the public domain,       A recent article extensively quoting the task
stitute for Legal Reform, also expressed his con-     that there is general consensus amongst Task           force’s chairman, Edward Sherman, suggested
cerns respecting the current state of class ac-       Force members about the existence of prob-             that the ABA’s report would propose some
tion litigation and voiced his support for the        lems with the proliferation and handling of class      limited expansion of federal court jurisdiction
proposed legislation. He maintains that reform        action litigation. But, beyond this general con-       over class actions, but not as much as in the
is needed to curb forum shopping that is              sensus, there does not appear to be agree-             proposed bill. Chairman Sherman further sug-
achieved by naming defendants and plaintiffs          ment over what reforms are most appropriate.           gested that the Task Force would recommend
to ensure that only certain jurisdictions are         The diversity legislation seems to engender            increasing the jurisdictional amount required
represented. Reform would end the pressure            mixed reactions.                                       to remove cases to federal court to $20-25 mil-
that defendants feel to settle and would place                                                               lion, allowing state courts to maintain jurisdic-
some restraints on litigation that tends to           The Task Force could offer one of the follow-          tion if at least two-thirds of the class members
yield providing huge attorney payments with           ing two recommendations. It could issue a              are from the same state, and allowing state
low plaintiff recompense.                             report expressing general support that some            courts to retain jurisdiction in cases involving
                                                      sort of reform legislation is needed to remedy         plaintiffs from up to four contiguous states.
Opponents maintain that states can easily and         class action abuse without offering any spe-
efficientlyhandletheclassactioncaseload. They         cifics as to what sort of reform should be             Sources close to the task force have indicated
fear the legislation could cause reverse-forum        adopted. The Task Force is trying to reach             that a number of its members were outraged
shopping, where defendants could choose the           consensus, but if there are different viewpoints       by Chairman Sherman’s published comments.
forum they would like the class action heard.         respecting the appropriate scope of federal            The Task Force, according to these sources,
They also express federalism concerns, main-          jurisdiction, that will make it difficult to support   had agreed not to make any of its discussions
taining that the federal government has no            or oppose the legislation wholesale. On Capi-          or proposals public until the release of the final
superior interest than the states. Others ques-       tol Hill, this would put the ABA in the position       report, if a final report is ever released. More-
tion the Article III authority of “minimal di-        of generally expressing concerns about the             over, many of the ideas suggested by Chair-
versity” jurisdiction.                                state of class acton litigation, educating Mem-        man Sherman are reported to have been spe-
                                                      bers about the problems, and urging some               cifically rejected or never discussed with the
Opponents of the legislation included Richard         kind of legislative reform that may expand fed-        Task Force members. And sources close to
Middleton, president of the Association of Trial      eral jurisdiction, but without opining about the       some Task Force members believe that
Lawyer of America (ATLA), who in testi-               ideal, specific reach of federal jurisdiction and      Sherman was injecting his own personal pre-
mony to the Task Force called the Class               without ruling out Rule 23 reform as well.             dispositions other than those of the majority
Action Fairness Act a “jurisdictional restraint                                                              of the task force into the public domain.
bill” that would create “reverse forum shop-          Another possibility could be for the Task Force
ping” where defendants could choose the               to support class action diversity legislation,
jurisdiction. He proposed that the Judicial           but with caveats. Under this approach, some            ABAWATCH will continue to monitor devel-
Conference Rules Committee handle class               of the provisions that have appeared in the            opments respecting the Task Force’s work and
action reform, rather than legislation.               class action diversity bills could well be en-         ABA reactions to it.
ABA WATCH                                                                      5                                                        February 2003
continued from page 3                        neys. In a floor speech, Senator Edwards        rules, not through federal legislation or
                                             had accused the ABA of failing to pro-          federal agency regulations.” The revised
Model Rules of Professional Responsi-        mote “up the ladder” reporting of corpo-        ABA’s Model Rules of Professional Con-
bilities and Conduct. The ABA antici-        rate misconduct. In a letter to then-Secu-      duct could be adopted by the states if
pated its findings would contribute or       rities and Exchange Commission Chair-           they so chose.
even serve as a model for reforms that       man Harvey Pitt, Senator Edwards wrote,
the federal and state governments and        “The American Bar Association’s Model           The Cheek Task Force issued its prelimi-
the corporate world would institute.         Rules of Professional Responsibility have       nary report on July 16, as the Sarbanes-
Hirshon stated at the time, “The Enron       not recognized mandatory and unambigu-          Oxley bill went to conference. The core
situation and others like it have caused     ous rules of professional conduct for cor-      conclusion was that active and informed
the legal profession to look carefully at    porate practitioners, and rules at the state    participation of independent directors
the legal and regulatory systems de-         level are varied and unenforced.” He pro-       and advisers has too often fallen short in
signed to safeguard the public’s trust in    posed greater scrutiny of lawyers in the        safeguarding the best interests of a cor-
the integrity of American public             wake of the Enron scandal, assigning            poration.
companies…The devastating effects of         them greater responsibility to report ethi-
one company’s actions on the entire          cal violations. He wrote, “[p]articularly in    With regard to internal corporate gover-
economy and on those most closely af-        the view of the uncertainty surrounding         nance, particularly the composition and
fected – employees, customers and share-     current ABA and state rules, my view is         procedures of the board of directors and
holders – argue for careful review of the    that this obligation should be imposed          core committees of a corporation, the Task
roles lawyers and other key parties play     as a matter of federal law or regulation.”      Force recommended “that the ABA con-
and can play in creating an environment                                                      sider and endorse a series of corporate
designed to assure corporate integrity       The ABA took issue with Senator                 governance initiatives that are intended
and responsibility.”                         Edwards’ accusation. ABA President              to enhance the likelihood that key corpo-
                                             Hirshon wrote to Senator Edwards, stat-         rate actors and advisers will act to further
Hirshon named James H. Cheek, III of the     ing that his criticism of the ABA is “mis-      the interests of the corporation and its
Nashville law firm of Bass, Berry, & Sims    placed.” Hirshon informed Senator               shareholders.”
PLC to chair the Task Force. Other repre-    Edwards that the ABA’s Corporate Re-
sentatives included General Motors Ex-       sponsibility Task Force was currently           Among its recommendations:
ecutive Vice President Thomas                studying the issues involved and prepar-           ·    Self-regulatory organizations,
Gottschalk; Aon Consulting Senior Vice       ing recommendations: 1) clarifying law-            with the support of the SEC or under
President Neil Hennessy; former ABA          yers’ corporate governance responsibili-           the guidance of a Blue Ribbon Com-
President R. William Ide III; Gibson, Dunn   ties, including proposals for amending             mission, “should adopt standards of
& Crutcher partner John Olson; former        the ABA Model Rules of Professional                governance that reflect the neces-
SEC Commissioner Aulana Peters; Dean         Conduct; and 2) strengthening internal             sary improvements to the system of
Joel Seligman of Washington University       corporate governance. Hirshon reported             corporate checks and balances ap-
School of Law; Munger, Tolles, & Olson       that the Task Force also was considering           plicable to the largest public compa-
partner Simon Lorne; former Salomon          strengthening ABA Model Rule 1.13,                 nies.”
Smith Barney general counsel Robert          which requires a lawyer representing an            ·    Companies should have a ma-
Mundheim; Judge Ben Tennille of the          organization to best represent its inter-          jority membership of its Board of
North Carolina Business Court; and           est, and was considering ways in which             Directors be independent of man-
Solomon B. Watson IV, the senior vice        the lawyer could act if he believes that           agement.
president, general counsel, and secretary    harm the client is committing could con-           ·    The Board of Directors should
of The New York Times Company. The           stitute illegal activity.                          appoint a Corporate Governance
“Cheek Task Force” began drafting an                                                            Committee of independent directors
initial report timed to be released be-      Hirshon wrote that the ABA continues               responsible for appointments to the
fore the ABA’s Annual Meeting in             “to believe that the promulgation and              Board. This Committee, or an
August 2002.                                 enforcement of lawyer ethical standards            equivalent, should recommend a
                                             should remain the primary responsibility           corporate code of ethics, which
In June, with work on a set of proposals     of the state courts…[A]lthough we agree            should establish a mechanism
underway, the Cheek Task Force corre-        with you that the issue of the corporate           through which violations or
sponded with North Carolina Senator          attorney’s ethical duty to disclose mis-           breaches of duty could be freely
John Edwards. Senator Edwards had            conduct to boards of directors is impor-           communicated.
taken the lead along with Wyoming Sena-      tant and should be closely examined, we            ·    The Audit Committee should
tor Mike Enzi and New Jersey Senator         believe that changes in this ethical rule, if      consist of independent directors and
Jon Corzine in crafting some of the provi-   any, ultimately should be accomplished             should have the authority to engage
sions in Sarbanes-Oxley relating to attor-   through the adoption of new state court            or remove the corporation’s outside

February 2003                                                      6                                                 ABA WATCH
    auditor, should have the authority      on fourteen subsequent occasions, are a              would ascertain the matter in ques-
    to engage independent accounting        “comprehensive and uniform set of stan-              tion.” This standard is lower than a
    and legal advisors, and should be       dards” for attorneys. Most state supreme             “clear and convincing evidence stan-
    able to recommend and establish         courts have adopted professional stan-               dard” in order to compel disclosure
    polices relating to non-audit ser-      dards based upon the Model Rules.                    by lawyers who might otherwise be
    vices provided by the corporation’s     However, the Task Force found these                  willfully blind about possible mis-
    outside auditor.                        “broad and aspirational principles” do not           conduct.
    ·    The Audit or Corporate Gover-      serve as an adequate guide for lawyers               ·    Improve the linkage among the
    nance Committee, or their equivalent,   who may encounter unethical conduct by               Model Rules relating to a lawyer’s
    should review and approve any ma-       corporate officers. Thus, the Task Force             responsibility when faced with the
    terial transactions between the cor-    offered these recommendations:                       discovery of illegal conduct or
    poration and any of its directors or         ·     Amend Model Rule 1.13, stat-              breach of duty in representing a cor-
    executive officers.                          ing that “a lawyer employed or re-              porate client.
    ·    The Audit and Corporate Gov-            tained by an organization represents
    ernance Committees should estab-             the entity.” This rule considers           Furthermore, procedures should be imple-
    lish regular meetings with the cor-          whether and when a lawyer should           mented to establish regular meetings be-
    porate officers responsible with             present concerns about corporate           tween the general counsel and indepen-
    implementing the corporation’s eth-          misconduct “related to the [lawyer’s]      dent directors to facilitate board atten-
    ics and compliance policies.                 representation” to a higher author-        tion to possible incidences of corporate
    ·    The Compensation Commit-                ity. The rule recognizes lawyer-cli-       misconduct. Outside counsel should also
    tee consisting of independent di-            ent confidentiality could be harmed        establish a line of communication with
    rectors should determine or recom-           if a lawyer reports misconduct. The        the general counsel in order to facilitate
    mend senior executive officer com-           Task Force found that the language         better communication of possible mis-
    pensation and have the authority             of the rule discouraged reporting          conduct.
    to engage independent executive              such misconduct, and recommended
    compensation and legal advisers              amending the rule to make it more          The Task Force concluded that the Model
    when necessary.                              clear that the lawyer should report        Rules should be amended so as better to
                                                 the misconduct to a higher author-         protect the public from criminal or fraudu-
Other items it suggested considering in-         ity if initial efforts fail. The rule      lent conduct using a lawyer’s services,
clude term-limiting directors and commit-        should also be amended to make             better to serve the interests of organiza-
tee members, naming a “lead” director or         clear that this disclosure would not       tional clients, and better to guide lawyers
chair, establishing ethical training pro-        violate Model Rule 1.6.                    in complying with their ethical obligations
grams for directors, and adopting evalu-         ·     Extend Model Rule 1.6, which         when serving organizational clients.”
ations of the Board itself.                      “prohibits (with limited exceptions)
                                                 a lawyer from disclosing information       Sarbanes-Oxley
With regard to ways in which lawyers can         relating to the representation of a cli-   In July, ABA Governmental Affairs Di-
advance corporate responsibility within          ent except with the client’s informed      rector Robert Evans sent a letter to Sena-
an ethical and governance framework, the         consent.” The Task Force recom-            tor Paul Sarbanes conveying the ABA’s
Task Force recommended “that the ABA’s           mends amending the rule to allow           “serious” concerns with the pending cor-
Standing Committee on Ethics and Pro-            lawyers to reveal information to the       porate responsibility bill, H.R. 3763,
fessional Responsibility consider a num-         extent necessary to prevent the cli-       known as the “Public Company Account-
ber of modifications to the ABA’s Model          ent from committing a crime or fraud       ing Reform and Investor Protection Act
Rules of Professional Conduct, and the           certain to result in substantial injury    of 2002.” His concerns included:
Task Force also recommends a gover-              when the lawyer’s services were be-             ·    “the overly broad definition of
nance process designed to establish ef-          ing used to further such a fraud and            ‘persons associated’ with an ac-
fective channels for chief legal officers        further recommends making disclo-               counting firm” that “would inadvert-
and outside corporate counsel to com-            sure mandatory, rather than permis-             ently subject lawyers representing
municate with independent directors.”            sive.                                           accounting firms to new ethical stan-
                                                 ·     Expand Model Rules 1.2 and 4.1            dards issued by the oversight
The ABA examined its Model Rules of              which “prohibit active participation            board.” This would regulate attor-
Professional Conduct, which “encourage           in a client’s criminal or fraudulent            neys who “merely provide legal ad-
lawyers to embrace and observe moral             conduct.” The Task Force recom-                 vice” to accounting firms with re-
and ethical considerations beyond legally        mended that lawyers should be held              spect to audits.
required minimum standards.” The                 to the “reasonably should know stan-            ·    the Senate bill’s provisions re-
Model Rules, adopted by the ABA                  dard” – namely “that a lawyer of rea-           quiring the SEC “to impose new
House of Delegates in 1983 and amended           sonable prudence and competence                 ‘minimum standards of professional
ABA WATCH                                                         7                                                February 2003
    conduct before the agency” (in es-      “up the ladder” to the company’s se-           courts and judicial regulation of attorneys
    sence, Senator Edwards’ proposal).      nior management or board of directors.         was the most effective means to enforce
    ·    the House bill’s provision re-                                                    high ethical standards, and questioned
    quiring the Comptroller General “to     This provision immediately provoked            Chairman Pitt’s observations.
    study the ABA Model Rules of Pro-       controversy, with unlikely alliances
    fessional Conduct and existing SEC      formed across different sides of the po-       Section 307 Task Force
    rules and possibly recommend new        litical aisle. President Bush applauded        In November, the SEC voted to propose
    federal legislation or regulations to   the act overall, commending Senator Paul       rules implementing Section 307. The SEC
    override the existing rules.”           Sarbanes and Congressman Mike Oxley            mandated that the standards require at-
                                            as “true advocates of corporate integrity.”    torneys to report “evidence of a material
The ABA’s concern derived from the ethi-    Senator Edwards also praised the legis-        violation of securities law or breach of
cal codes of state supreme courts, mod-     lation and criticized the ABA’s lobbying       fiduciary duty or similar violation by the
eled from its own Model Rules of Profes-    efforts against Section 307, stating, “The     company or any agent thereof” to the
sional Conduct. The ABA view was            ABA doesn’t like the amendment, but the        chief legal counsel and/or the chief ex-
that new federal regulation would cause     truth is that those who are sworn to up-       ecutive officers of the company. If they
“unnecessary and counterproductive”         hold the law have no right to look away        do not respond appropriately, the attor-
changes and confusion if the SEC’s new      when the law is being broken.”                 ney would be required to report further
regulations were to preempt state court                                                    “up the ladder” to the audit committee,
rules. Evans argues that the state rules    Critics echoed the ABA’s critique of the       another committee of independent direc-
have “stood the test of time” and are       legislation, claiming that the provisions      tors, or the complete Board of Directors.
“strict” enough to govern attorneys.        in Section 307 are already mandated by         The SEC allowed thirty days to collect
He further noted that the attorney-cli-     state law, that Section 307 will hurt law-     comments on their proposals.
ent privilege could be breached if the      yer-client confidentiality, and that the
proposed regulations were imple-            threat of criminal penalties was overly        On November 13, ABA President A.P.
mented. Evans maintained that,              harsh when attorneys already faced the         Carlton appointed a task force to study
“[r]egulation of lawyers should remain      possibilities of fines, suspension, and        Section 307 and offer comments. This
the province of the judiciary, not the      even disbarment if they did not report         new task force, chaired by Peter Moser,
executive, and any attempt to grant the     possible corporate misconduct. Further-        former chairman of the ABA Standing
accounting oversight board or the SEC       more, sufficient guidance is not provided      Committee on Ethics and Professional
the power to adopt a set of national        in the new law regarding when and under        Responsibility, would release its findings
rules would violate separation of pow-      what circumstances a lawyer should re-         in December. Carlton stated at the an-
ers principles.” The ABA believed the       port possible wrongdoing.                      nouncement, “The ABA has long been
proposals of its Cheek Task Force to                                                       interested in ensuring that attorneys live up
strengthen existing state ethics rules      SEC Chairman Harvey Pitt invited the           to the highest ethical standards and has
were sufficient.                            ABA to participate in a “thoughtful and        supported vigorous enforcement of ethical
                                            constructive dialogue” concerning the          standards for lawyers. We recognize the
Ultimately, the ABA concluded “that         new law, and incoming ABA President            complexity of our work ahead of us and look
the provisions in H.R. 3763 authoriz-       A.P. Carlton accepted his invitation to        forward to providing the commission with
ing the oversight board and the SEC         offer comment. The ABA did ask Chair-          our perspectives on these issues.”
to preempt state law and override the       man Pitt to provide more information re-
existing state court ethical rules that     garding his belief that state bar associa-     On December 18, the new Task Force re-
govern the conduct of all lawyers in        tions had not adequately addressed these       leased its comments. A.P. Carlton called
the nation are counterproductive and        ethical issues, as Pitt conveyed in a          upon the SEC to defer proposals regulat-
will have an adverse effect on the le-      speech he delivered to the Association         ing the legal profession beyond those
gal system.”                                at its Annual Meeting. Pitt had stated,        specifically laid out by Congress in
                                            “By and large, the Commission has been         Sarbanes-Oxley, citing the need to allow
On July 30, President Bush signed the       circumspect about using its self-created       sufficient time for careful consideration.
Sarbanes-Oxley Act into law. The law        ability to review and sanction the con-        He stated, “It would be tragic if we squan-
included Section 307 instructing the        duct of lawyers, preferring to leave this      dered this golden opportunity to fashion
SEC to adopt a rule of practice within      task to professional organizations, like the   the most effective measures that offer real
180 days establishing “minimum pro-         various state bar committees. But I’m not      protections to investors in favor of quick
fessional standards of professional         impressed, or pleased, by the generally        but illusory and ineffective fixes. Some
conduct for attorneys appearing and         low level of effective responses we re-        of the proposed rules of practice repre-
practicing before the Commission” in        ceive from state bar committees when we        sent profound changes in who is viewed
any way, including instructions for at-     refer possible disciplinary proceedings to     as practicing securities law. Others would
torneys to report corporate misconduct      them.” The ABA asserted that state             reshape lawyers’ options in helping cor-

February 2003                                                    8                                                  ABA WATCH
poration decision-makers confirm their              torney who actively practice securi-      December 18 comment letter signed by
conduct to standards of legality and ethi-          ties law and represent clients before     77 law firms took issue with the details
cal business practice. If we are to create          the SEC. Moser stated, “Fundamen-         of the SEC regulations, but the allega-
such sweeping changes, we ought not                 tal fairness as well as effective re-     tion respecting the abuse of enforce-
to proceed at breakneck speech, and make            porting require that regulatory obli-     ment authority at the state level was
sure it goes not further than what Con-             gations be imposed only on people         not addressed.
gress intended.”                                    in a position to know they are sub-
                                                    ject to the obligation and who are in     Debate about the scope of SEC regula-
The ABA’s, and other critics, chief con-            a position to respond appropriately.”     tion over lawyer conduct is not new. Until
cerns about the SEC’s proposals concern-            ·     “Evidence of a material vio-        two decades ago, under rule 102(e), the
ing Section 307 include:                            lation of law,” the language used         SEC had been able to bar lawyers who
     ·     According to President Carlton,          in Sarbanes-Oxley, is too loosely         had engaged in misconduct from practic-
     the SEC had surpassed its authority            defined.                                  ing before the Commission. The SEC had
     granted by Congress, as “it intended           ·     An extended comment period          proposed an interpretation of rule 102(e)
     to assure that lawyers pursue their            beyond thirty days is needed to al-       calling for lawyers who knew about cli-
     concerns about intended client con-            low an ample amount of time to fully      ents engaging in illegal activities to re-
     duct up the corporate decision-mak-            consider the SEC’s proposals on           sign or “take all efforts within reason” to
     ing ladder, to make sure the board of          Section 307.                              avoid or stop the illegal behavior. These
     directors, which has ultimate deci-                                                      efforts could include informing the
     sion-making authority, is advised of      The ABA advocates enforcing existing           company’s board of directors. The ABA
     material problems.”                       state laws and maintains that recently         vehemently objected to this interpreta-
     ·     State lawyer ethic rules already    implemented enhancements of corporate          tion, arguing that the SEC had no juris-
     require lawyers to disclose corpo-        governance will likely make it much more       diction over lawyer ethics and that its rec-
     rate misconduct and disclose client       likely that appropriate action will be taken   ommended interpretation would threaten
     confidences to disclose fraud; fed-       to prevent fraud. The ABA further main-        the attorney-client privilege. The SEC
     eral law is not needed to regulate this   tains that additional time is needed to        deferred to the ABA, deciding to leave
     area.                                     consider the SEC’s proposals.                  regulation of ethical conduct to the state
     ·     The “noisy withdrawal” re-                                                         courts, barring lawyers from practicing
     quirement for lawyers to report to        Proponents of the SEC standards, who           before the SEC only as a follow-up to court
     the SEC that they are withdrawing         are critics of the ABA approach, argue         action. This all occurred around the same
     from representing the corporation         that attorney-client confidentiality is not    time that the ABA was refining its Model
     because of “professional consider-        as important as ensuring that future inci-     Rules of Professional Conduct, which
     ations” and to disaffirm misleading       dents of corporate misconduct do not           ultimately permitted the disclosure of cli-
     documents filed with the SEC could        reoccur. A lawyer’s responsibility is to       ent confidences only to lawyers likely to
     breach lawyer-client confidentiality.     the corporation and its clients, not the       defend themselves or to prevent crimi-
     In fact, it could go so far as to “risk   executives the lawyer directly works with.     nal acts likely to result in significant
     destroying the trust and confidence       Furthermore, the proposals do not com-         harm. Until the Cheek Task Force, the
     many issuers have up to now placed        pel lawyers to supply confidential client      ABA did not offer any new exceptions
     in their legal counsel, creating di-      materials to the SEC; they only serve to       to attorney-client confidentiality. A
     vided loyalties.” Potentially, clients    alert the SEC to possible misconduct. The      four-year review concluding in August
     could withhold information from their     SEC has also provided the mechanism of         2001 recommended expanding excep-
     lawyers in order to protect them-         a legal-compliance committee to review         tions to include incidences in which cli-
     selves. The ABA also does not be-         and report possible misconduct to the SEC      ents were permitted to disclose confi-
     lieve that Congress intended Section      if actors further “up the ladder” do not       dences to prevent a crime or fraud in-
     307 to require a “noisy withdrawal.”      take action, rather than leaving the re-       volving the lawyer’s services or to pre-
     However, the ABA conceded that            sponsibility to the lawyer.                    vent financial injury to a third party.
     “under virtually all state court rules                                                   However, the House of Delegates re-
     of lawyer conduct…a lawyer must           Critics of the ABA’s proposals point out       jected this proposal.
     withdraw from representing a client       that state courts have done little in terms
     if the lawyer’s services will be used     of enforcing or creating new ethics laws       Conclusion
     to assist the client to commit a crime    for attorneys. In a December comment           By January 26, the SEC is instructed to
     or fraud.”                                letter to the SEC, 51 law professors ar-       adopt rules governing Section 307.
     ·     The proposed rules are too          gued that they did not know of a single        BARWATCH BULLETIN will offer an
     broad when considering which at-          occurrence in which bar counsel had even       update concerning the ABA’s reaction
     torneys are covered by the rules.         brought charges against a major law firm       to the final rules and continuing action
     The SEC’s proposals cover any at-         relating to securities law practice. A         from its Section 307 Task Force.

ABA WATCH                                                           9                                                February 2003
continued from page 4                               Rights, the International Covenant              ·    With regard to the U.N. General
nied access to counsel in connection with           on Civil and Political Rights, and Prin-        Assembly’s Principles for the Pro-
the opportunity for such review.” The               ciple 17(1) of the Body of Principles           tection of All Persons under Any
Recommendation further resolves that                for the Protection of All Persons               Form of Detention or Imprisonment,
Congress and the Executive Branch “es-              under Any Form of Detention or                  “General Assembly resolutions are
tablish clear standards and procedures              Imprisonment, adopted by the                    not binding under either international
governing the designation and treatment             United Nations General Assembly in              law or domestic law.”
of U.S. citizens and other persons law-             1988.
fully present in the United States who are          ·     Though the Sixth Amendment           Shortly after the submission of Recom-
detained within the United States as en-            does not guarantee access to coun-         mendation 109, the Fourth Circuit Court
emy combatants.” The Recommendation                 sel for an uncharged enemy combat-         of Appeals on January 8 dismissed the
clearly is a response to two pending                ant, “a right of access to counsel in      habeas corpus petition of Yaser Hamdi,
cases—Hamdi and Padilla—which in-                   habeas proceedings is implicit in the      an apparent American citizen who had
volve the detention of American citizens            Fifth Amendment’s Due Process              been captured among Taliban forces in
who have been deemed enemy combat-                  Clause.”                                   Afghanistan and is detained at a military
ants and are being held here in the United                                                     prison in Virginia.
States.                                        The General Counsel of the Department
                                               of Defense, William J. Haynes, responded        The precise question was how much evi-
The report accompanying Recommenda-            to an earlier draft of the report in a letter   dence the President must provide to sup-
tion 109 begins with the caution that “we      to Neal Sonnett, chairman of the ABA            port his designation of Hamdi as an
must always guard against the dangers          Task Force on Treatment of Enemy Com-           “enemy combatant.” The court gave
of overreaction and undue trespass on          batants. The letter is instructive because      some significance to a declaration that
individual rights, lest we lose the free-      it sets forth the arguments likely to be        the government had submitted describ-
doms which are the greatness of                raised in the House of Delegates by op-         ing Hamdi’s capture and detention, but
America.” The report continues: “We rec-       ponents of Recommendation 109. The              it essentially held that the government
ognize the government’s responsibility         Haynes letter makes the following points:       need provide no evidence, and a de-
to do everything possible to prevent an-            ·     The Supreme Court has never,         tainee may offer no rebuttal, where—
other attack on our nation, but we also             in Ex Parte Quirin or elsewhere, sup-      as in Hamdi’s case—it is undisputed
worry that the methods employed in the              ported a right to judicial review of       that he was captured abroad in a zone
Hamdi and Padilla cases risk the use of             enemy combatant status. The                of combat.
excessive government power and                      Haynes letter maintains: “Quirin pro-
threaten the necessary checks and bal-              vided for judicial review of a convic-     Given this undisputed predicate, there
ances in our federal system.” The report            tion by military commission in the         was no cause to question the President’s
then makes several key arguments:                   United States. The error here is to        designation. Thus, it was irrelevant what
     ·    The term “enemy combatant”                equate enemy combatant detention           Hamdi had been doing in the zone of com-
     does not have a meaning of long                with trial, conviction, and punish-        bat, whether he was a lawful or unlawful
     standing, and, as a consequence, the           ment of war criminals. Enemy com-          combatant, whether he was an American
     status of such individuals and the             batant detention is not punishment.        citizen, and where he was being detained.
     rights they should be afforded are             Rather, its purpose is to gather intel-    The Fourth Circuit’s refrain was that, by
     not altogether clear.                          ligence and to ensure that detainees       limiting judicial inquiry to the existence
     ·    A citizen detained as an enemy            do not return to assist the enemy.”        of this predicate, it was exercising a def-
     combatant should have the right to             ·     Presidents “since the beginning      erence mandated by the hazards of and
     a judicial determination as to whether         of the Republic have legally and           obstacles to probing battlefield incidents
     18 U.S.C. 4001(a) applies, which pro-          uncontroversially detained enemy           and by the critical, constitutional powers
     vides that “no citizen shall be im-            combatants during wartime pursu-           of the President and Congress to vindi-
     prisoned or otherwise detained by              ant to the Commander in Chief              cate the collective right of self-defense.
     the United States except pursuant              power. Moreover, Congress autho-
     to an act of Congress.”                        rized enemy combatant detentions           But the court also limited its decision.
     ·    “International agreements and             in its September 18, 2001 Joint Reso-      First, it expressly avoided the case of Jose
     principles recognized by the United            lution, which states that the Presi-       Padilla, by distinguishing the question
     States also support the fundamental            dent may “use all necessary and ap-        of enemy combatants captured outside a
     importance of recognizing a                    propriate force against those nations,     zone of combat or within the United
     detainee’s right to judicial review ad         organization, or persons he determines     States—even as it relied on In re Quirin,
     access to counsel.” The report spe-            planned, authorized, committed or aided    in which the Supreme Court had upheld
     cifically cites Articles 8 and 9 of the        the terrorist attacks that occurred on     detention of German soldiers captured in
     Universal Declaration of Human                 September 11, 2001.”                       the U.S. Second, the court arguably left

February 2003                                                       10                                                 ABA WATCH
an opening for closer judicial review of        requirements applicable to domestic law        law or regulation that “would compel law-
enemy-combatant designations in wars,           enforcement investigations.”                   yers to disclose confidential information
unlike the present one, that the President                                                     to government officials or otherwise com-
conducts without some form of congres-          There likely will be opposition to this        promise the lawyer-client relationship or
sional approval. Finally, the Fourth Cir-       Recommendation, particularly with re-          the independence of the bar.” The spon-
cuit avoided the thorny question                spect to the sponsors’ call for clarifying     sors, however, also call for the ABA “to
whether, and how, a court could deter-          legislation. Opponents of the proposal         evaluate whether the rules permitting, in
mine that hostilities had ceased, making        already have suggested that the legisla-       appropriate circumstances, disclosure of
such a detention no longer lawful, explain-     tion being sought would return the Fed-        confidential information should be modi-
ing that hostilities in Afghanistan plainly     eral government back to the days of not        fied to permit disclosure of information
had not ceased.                                 knowing when a terrorism tip has flipped       demonstrating the clear intent of a client
                                                from bona-fide intelligence gathering into     to commit criminal acts such as money
Foreign Intelligence Surveillance. In           domestic law enforcement. In order to          laundering.”
proposed Recommendation 118, the Sec-           avoid falling afoul of this inherently vague
tion on Individual Rights and Responsi-         line, opponents caution that the Justice       This Recommendation is prompted by the
bilities is urging Congress “to conduct         Department would invariably have to re-        “Gatekeeper Initiative” of the Financial
regular and timely oversight, including pub-    erect the wall between law enforcement         Action Task Force, an intergovernmen-
lic hearings, where appropriate, to ensure      and intelligence, and that wall was the        tal body of 29 countries charged with
that government investigations undertaken       reason why the FBI denied one of its           developing anti-money laundering poli-
pursuant to the Foreign Intelligence Surveil-   agents permission to launch a criminal         cies. Among other proposals, the
lance Act …comply with the First, Fourth,       investigation to find an al-Qaeda agent        Gatekeeper Initiative would extend anti-
and Fifth Amendments to the Constitution        who had entered this country months            money laundering initiatives to lawyers.
and adhere to the Act’s purposes of ac-         earlier. That al-Qaeda member was living       Lawyers would have new record keeping
commodation and advancing both the              openly in the US and had just purchased        requirements and would have additional
government’s interest in pursuing legiti-       a ticket in his own name on one of the         obligations to disclose suspicious trans-
mate intelligence activity and the              flights that would be hijacked on Sep-         actions to law enforcement.
individual’s interest in being free from        tember 11. According to one critic of Rec-
improper government intrusion.”                 ommendation 119, the country already           This recommendation is likely to engen-
                                                has “paid a high price for the dubious         der support from two camps—those who
In the report accompanying Recommen-            comfort of pretending there’s a clean line     have, over the past several years, resisted
dation 118, the sponsors observe that, in       between ‘bona fide intelligence’ and ‘do-      efforts in a number of contexts to dilute
the wake of 9/11, the Bush administration       mestic law enforcement.’ For the ABA to        the attorney-client privilege, and, second,
“sought a number of changes to the              try to revive this discredited — and           those who are generally skeptical about
[FISA] statute to remove some of the re-        deadly — dichotomy would be a terrible         whether the money laundering provisions
strictions that the government must sat-        step backward.”                                are effective at ferreting out criminal and/
isfy before conducting foreign intelligence                                                    or terrorist activity. Individuals support-
surveillance.” The report cautions:             Money Laundering. Recommendation               ive of the USA PATRIOT Act may op-
“There is now a significant danger that if      104, introduced by several ABA Sections        pose the Recommendation because
the government can show a ‘measurable’          as well as the ABA Task Force on               strengthening the money laundering pro-
foreign intelligence purpose in a given         Gatekeeper Regulation and the Profes-          visions was a key component of that leg-
situation, it will elect to use FISA proce-     sion, “supports the enactment of reason-       islation, and Recommendation 104 may
dures rather than the more exacting stan-       able and balanced initiatives designed to      be viewed as creating too much of a loop-
dards of Title III, even in a case where the    detect and prevent domestic and inter-         hole. Opponents are likely to point out
overriding purpose is to bring a criminal       national money laundering and terrorist        that there has been at least one reported
prosecution. This situation puts at risk        financing.” The sponsors maintain that         instance in New York where legal coun-
core guarantees of our Constitution, in-        policies in this area should recognize that    sel representing a terrorist has served as
cluding the Fourth Amendment’s protec-          lawyers play a crucial role in ensuring law-   a conduit for passing messages to a ter-
tions from unreasonable searches, asso-         ful compliance by persons involved in          rorist network, and was criminally
ciational rights protected under the First      the commercial arena, that the judiciary       charged for so doing.
Amendment, and the Fifth Amendment              and the bar are responsible for develop-
privilege against self-incrimination.” The      ing lawyer ethical rules, and that the law-    Criminal Justice
Individual Rights Section is seeking leg-       yer-client relationship of confidentiality     Death Penalty. Recommendation 107,
islation “to clarify that FISA is intended      must be protected.                             offered by the Standing Committee on
to be used only for bona fide foreign-                                                         Legal Aid and Indigent Defendants and
intelligence gathering purposes and not         With these principles in mind, the spon-       the Special Committee on Death Penalty
to circumvent the Fourth Amendment              sors are asking the ABA to oppose any          Representation, seeks to have death pen-

ABA WATCH                                                           11                                                February 2003
alty jurisdictions adopt the ABA’s Guide-             revisions also require “that at least     in the legitimate economy, and perpetu-
lines for the Appointment and Perfor-                 one team member is qualified to           ate his alienation from the community.”
mance of Defense Counsel in Death Pen-                screen for mental or psychological        Here are some of the provisions that may
alty Cases. These Guidelines originally               disorders or impairments,” re-            engender some debate and controversy:
were approved by the House of Delegates               sponding to the Court’s decision               ·    “The Legislature should require
in 1989. The version presently before the             in Atkins v. Virginia.                         a sentencing court to take into ac-
House contains several important revisions.           ·     With respect to funding and              count, and the court should consider,
      ·     The Guidelines originally were            compensation of defense teams, the             applicable collateral sanctions in
      aspirational in character. The revised          revised Guidelines have changed to             determining an offender’s overall
      version now before the House                    include express disapproval of flat            sentence.”
      states, in the “black letter” portion,          or fixed fee compensation and statu-           ·    “Persons convicted of any of-
      that the purpose of the Guidelines is           tory fee minimums.                             fense should not be deprived of the
      “to set forth a national standard of                                                           right to vote either by the law or by
      practice.” In other words, rather than     This Recommendation has been intro-                 the action or inaction of government
      aspirational, the Guidelines are now       duced, according to its sponsors, be-               officials.”
      meant to, in the words of the report       cause Congress may well address legis-              ·    “Conviction or confinement
      accompanying Recommendation                lation regarding the issue of adequate              alone should be insufficient to de-
      107, “embody the current consen-           capital counsel during this session and             prive a person of …the right to adopt
      sus about what is required to pro-         “it is important to ensure that the asso-           children.”
      vide effective defense representation      ciation participates in the congressional           ·    “Barriers to employment of
      in capital cases.”                         debate.” The sponsors expect that the               convicted persons based solely on
      ·     While the original version of        revised Guidelines “will be helpful in this         a past conviction should be prohib-
      the Guidelines called for “quality le-     regard.”                                            ited unless the offense committed
      gal representation,” the revised ver-                                                          bears a substantial relationship to
      sion under review by the House calls       Treatment of Convicted Persons. Recom-              the functions and responsibilities of
      for “high quality legal representation.”   mendation 103A seeks adoption of the                the employment.”
      ·     The original Guidelines applied      ABA’s Criminal Justice Standards on                 ·    “Each jurisdiction should en-
      to “cases in which the death penalty       Collateral Sanctions and Disqualification           courage the employment of con-
      is sought.” Their applicability has        of Convicted Persons. In relevant part,             victed persons by legislative and
      been extended to cover circum-             these standards seek to provide guidance            executive mandate, through financial
      stances where “an uncharged pris-          on how a court should handle the “col-              incentives and otherwise. In addi-
      oner might face the death penalty”         lateral consequences” from conviction or            tion, each jurisdiction should enact
      and “is denied access to counsel           sentencing. For example, consequences               legislation prohibiting the denial of
      seeking to act on his or her behalf        from a conviction might include disen-              insurance, or a private professional
      (e.g., by the federal government in-       franchisement, deportation, ineligibility           or occupational license, permit or
      voking national security, or by state      for certain public welfare benefits, or loss        certification, to a convicted person
      authorities seeking to evade consti-       of professional licenses. The key ques-             on grounds related to the convic-
      tutional mandates).” The sponsors’         tion is whether a court, in setting sen-            tion, unless engaging in the conduct
      report explains: “The period between       tences, should consider these collateral            underlying the conviction would
      an arrest or detention and the             issues.                                             provide a substantial basis for de-
      prosecutor’s declaration of intent to                                                          nial even if the person had not been
      seek the death penalty is often criti-     The Recommendation appears to be                    convicted.”
      cally important. In addition to en-        driven primarily by an aversion to con-
      abling an attorney to counsel his or       viction having any ramifications after a       Reduction or Modification of Sentences.
      her client and to obtain information       sentence has been served. The report           Recommendation 103B calls for support
      through investigation regarding guilt      states: “the laws restricting convicted        of the development of standards and
      that may later become unavailable,         persons in their ordinary life activities      mechanisms that will allow for the reduc-
      effective advocacy by defense coun-        have multiplied, discouraging rehabilita-      tion or modification of prison sentences
      sel during this period may persuade        tion of criminals, and participating in the    “based on extraordinary and compelling
      the prosecution not to seek the death      creation of a class of people who live per-    circumstances not foreseen at the time of
      penalty.”                                  manently at the margin of the law. The         sentencing.” The report accompanying
      ·     The revised Guidelines con-          criminal justice system aims at avoiding       the resolution suggests that severe ill-
      tinue to call for the assembly of a        recidivism and at promoting rehabilitation,    ness, impending death, physical or men-
      defense team that includes two quali-      yet collateral sanctions and administra-       tal disability, extreme old age, subsequent
      fied attorneys, one investigator, and      tive barriers to reentry may severely im-      changes in applicable law, compelling
      one mitigation specialist. But the         pede an offender’s ability for self-support    changes in family circumstances, and

February 2003                                                        12                                                 ABA WATCH
disparities in co-conspirator sentencing     infractions are often not handled, com-     ages in civil rights cases still would be
are among the justifications for reduc-      pounding the problem by generating          taxable under the ABA proposal.
tion or modification.                        warrants and additional fines. The
                                             Homeless Court Program (HCP) was            Victims of Domestic Violence. In Rec-
Civil Rights                                 created to offer homeless individuals       ommendation 106B, the Young Lawyers
The Homeless. Recommendation 116,            an opportunity to resolve their out-        Division “urges that state and federal
introduced by the Commission on              standing criminal cases by substitut-       legislatures, administrative agencies,
Homelessness and Poverty, “urges             ing participation in treatment programs     and courts prevent discrimination in
state, local, and territorial courts to      and other shelter programs for fines,       housing against victims of domestic
adopt Homeless Court Programs as             community service, and custody.”            violence.” The American Bar Associa-
treatment-oriented diversionary pro-                                                     tion believes that current federal hous-
ceedings that result in the dismissal of     Taxation of Civil Rights Judgments.         ing statutes do not do justice to do-
misdemeanor offenses upon comple-            In Recommendation 115, the Indi-            mestic violence victims. “The statutes
tion of shelter/service agency activities,   vidual Rights and Labor Sections            state that any criminal activity that
as a means to foster the movement of         have called upon Congress to enact          threatens the health, safety, or rights
people experiencing homelessness from        the Civil Rights Tax Relief Act. The        to peaceful enjoyment of the premises
the streets through a shelter program        goal of the recommendation is to pro-       by other tenants…engaged in by a pub-
to self-sufficiency,” The report reasons:    vide relief to civil rights employee        lic housing tenant, any member of the
“Homeless people are routinely issued        complainants by excluding from gross        tenant’s household, or any guest or
citations for such minor offenses as il-     income any amounts received “on             other person under that tenant’s con-
legal lodging, blocking the sidewalk,        account of claims based on certain          trol, shall be cause for termination of
jaywalking, drinking in public and uri-      unlawful discrimination, retaliation,       tenancy.” The ABA further maintains
nating in public, misappropriation of a      and employment claims.” The ABA             that the Supreme Court’s decision in
shopping cart, and riding the trolley/       asserts that, as a matter of fairness       HUD v. Rucker, which held that local
bus/subway without paying. In their          and equity, it is necessary to change       housing authorities have the discretion
daily struggle for food, clothing and        the current practice of allowing a          to evict on a “one-strike” policy and
shelter, the homeless population typi-       client’s relief to be non-taxable in per-   also have the authority to enforce this
cally has no means for making repara-        sonal-injury tort cases but taxable in      provision “as to drug-related activity,”
tions to the criminal justice system for     civil rights cases. It is important to      should be reevaluated. The recommen-
misdemeanor criminal conduct. Con-           note, however, that back pay, front pay,    dation calls for legislatures and hous-
sequently, misdemeanor citations and         liquidated damages, and punitive dam-       ing authorities to “make clear to local
                                                                                         public housing authorities that the
                                                                                         criminal activity of domestic violence
                                                                                         against a tenant cannot be justifiable
                                                                                         cause for eviction or other discrimina-

    FOR PREVIOUS ISSUES OF                                                               tion.” When a similar resolution was
                                                                                         circulated some years ago within the
                                                                                         ABA, concerns were expressed regard-
    ABA WATCH AND MORE                                                                   ing how authorities should handle cir-
                                                                                         cumstances where domestic violence is
                                                                                         a collateral consequence of other crimi-
    INFORMATION ABOUT                                                                    nal activity (e.g., drug abuse) or where
                                                                                         domestic violence is one of several mani-
  THE FEDERALIST SOCIETY,                                                                festations of violence within a housing
                                                                                         unit (e.g., the victim of domestic vio-
                                                                                         lence resides with a gang member with
   VISIT OUR WEB PAGE AT                                                                 general violent behavior). The Recom-
                                                                                         mendation does not speak to how such
                                                                                         situations should be resolved, and some
                                                                                         have expressed concern that an over-

             WWW . FED - SOC .ORG                                                        broad antidiscrimination provision may
                                                                                         tip authorities too far in the direction of
                                                                                         avoiding eviction (and ensuing litiga-
                                                                                         tion) in situations where there may well
                                                                                         be a substantial risk to public safety
                                                                                         that otherwise would justify action.

ABA WATCH                                                       13                                              February 2003
continued from page 4                          nance to review these recommendations          to examine the issues involved. Its ef-
                                               and to further report to the House of Del-     forts yielded a report published in July
tions. These criteria are strikingly similar   egates how these recommendations               2001 and a recommendation to the
to the criteria the ABA uses in its evalu-     could best be implemented. At the 1999         ABA House of Delegates at its 2002
ation of federal judicial candidates: integ-   Annual Meeting, the report and recom-          Midyear Meetings, which was passed.
rity, professional competence, and judi-       mendations of the Ad Hoc Committee,            Though the resolution again reaf-
cial temperament.                              which modify the ABA Model Code of             firmed its long-standing support of
                                               Judicial Conduct, were adopted by the          merit selection, the accompanying re-
Proponents of these model standards ar-        House of Delegates. The ABA                    port urged “states and territories that
gue that they would bring greater ac-          “reaffirm[ed] its commitment to the merit      select judges in contested elections to
countability to the judicial selection pro-    selection or judges, and urge[d] all juris-    finance judicial campaigns with pub-
cess. They believe this process would          dictions to enact constitutional provi-        lic funds.” This addresses “the per-
diminish the potential for corruption re-      sions setting out procedures for the merit     ceived impropriety associated with
sulting from campaign fundraising. Crit-       selection and either appointment or re-        judicial candidates accepting private con-
ics have responded that screening by the       tention election of judges.”                   tributions from individuals and organiza-
bar does not remove politics from the se-                                                     tions interested in the outcomes of cases
lection process – rather, the politics take    Yet, the ABA decided that until merit se-      those candidates may later decide as
place behind closed doors and amongst          lection of judges “become[s] the rule          judges.” Judges who campaign like po-
a more select group of bar leaders.            rather than the exception, the Associa-        litical candidates contribute to the “inap-
                                               tion must continue to urge that the fund-      propriate politicization of the judiciary.”
For more information on standards com-         ing of judicial election campaigns proceed
missions, see the July 2000 issue of ABA       with the least practical likelihood of harm    The resolution stated that public financ-
Watch.                                         to the integrity and independence of ju-       ing would be most suitable for judges
                                               dicial candidates and judges.” Public fi-      serving on courts of last resort, and in
The ABA & Judicial Elections                   nancing of judicial campaigns was sug-         some cases, intermediate appellate court
Although the ABA continues to promote          gested as a viable option, but further         judges. The resolution called on states
merit selection, in recent years the Asso-     study would need to be undertaken by           to provide candidates with full funding,
ciation began studying ways to reform          the ABA Standing Committee on Judi-            and such funding should be conditioned
judicial elections, particularly concerning    cial Independence.                             on the candidates’ agreement to forego
the way they are financed. Some believe                                                       private financing. The resolution also rec-
the ABA’s efforts were provoked by the         With $213,376 in funding obtained              ommended that states distribute funds
fact that not one state has moved from an      through the Joyce Foundation, along with       to the candidates in the form of bloc grants
elective system to the ABA-recom-              some additional financial support from the     and provide voter guides to the public.
mended system of merit selection. On           Open Society Institute, the ABA Commis-        The state entity that oversees the public
this view, the ABA had to address as-          sion on Public Financing of Judicial Cam-      financing program should be adequately
pects of the elective process to remain a      paigns convened in December 1999 to            staffed and administered independently
relevant participant in the dialogue over      study the feasibility of public financing of   of the judicial branch.
state judicial selection.                      judicial elections. The Joyce Foundation’s
                                               Money and Politics Program, which              The full report issued by the Task Force
In 1997, the ABA created a Task Force on       awarded the grant, works to “prevent cor-      addressed three arguments that oppo-
Lawyers’ Political Contributions, which        ruption” and “restore fairness and com-        nents of public financing have made. Crit-
resulted in two separate reports to the        petition to elections.” The Open Society       ics of public financing maintain that
ABA House of Delegates, with one con-          Institute provides grants to “support ini-     spending limits are unconstitutional and
cerning lawyers’ contributions to judicial     tiatives to reform selection of federal and    stifle the kind of robust debate that bet-
campaigns. The Task Force concluded            state judges to encourage merit selection      ter leads to a more informed electorate.
that “[t]he status quo in judicial campaign    and to reduce the corruptive influence of      According to the Task Force, public fi-
finance has already eroded public confi-       money and special interest politics.” The      nancing is consistent with the First
dence in several jurisdictions and puts it     ABA’s recommendations were treated with        Amendment because a choice would be
at too great a risk in all 42 states where     skepticism by the Chamber of Commerce          offered to candidates: candidates could
judges stand for election.” Recommen-          and several state justices supportive of       receive public funding, or forego the op-
dations concerning the report were sub-        elections who questioned whether the ide-      tion to raise private funds and thus spend
mitted to the ABA House of Delegates at        ologies of the donors unduly influenced        without limit.
the 1998 Annual Meeting, but were later        the Commission’s conclusions.
withdrawn for further study. Then-ABA                                                         A second objection the Task Force ad-
President Philip Anderson created an Ad        The Commission held three public               dressed is the lack of interest by the pub-
Hoc Committee on Judicial Campaign Fi-         hearings featuring 25 expert witnesses         lic to support such financing. Critics con-

February 2003                                                      14                                                 ABA WATCH
tend that public financing is unlikely to      date for a judicial office shall not an-        A wide variety of groups across the po-
occur as many states are running defi-         nounce his or her views on disputed le-         litical spectrum, from the Republican Na-
cits, and the electorate will be unwilling     gal or political views.” Plaintiffs chal-       tional Committee, to the ACLU and Pub-
to have a share of its tax dollars go to-      lenged the statute under the First Amend-       lic Citizen, lined up against the ABA po-
ward public financing at this time. Wis-       ment. In its brief, the ABA stated its in-      sition. These groups argued that the “an-
consin, fox example, which has tried to        terest in the case derived from the simi-       nounce” clause imposed a restriction on
publicly fund judicial elections, has not      larity between the “announce clause” and        political speech that is protected by the
received enough support from its elec-         the ABA Model Code of Judicial Con-             First Amendment. Further, other mecha-
torate to pass legislation to implement the    duct, which reads that “a judicial candi-       nisms exist to protect against judicial bias,
program. The Task Force countered this         date shall not make statements that com-        such as the doctrine of stare decisis, the
argument by stating that no efforts have       mit or appear to commit the candidate           right to appeal, and the lower courts’ duty
been made to publicize the benefits of         with respect to cases, controversies, or is-    to respect the decisions of higher courts.
public financing. Furthermore, the cam-        sues that are likely to come before the         Rules of Civil Procedure also allow for a
paign toward public financing has been         court.”                                         judge to be removed if bias is suspected.
hampered by “groups with legislative
agendas” who “don’t work in the judi-          The ABA contended that its Model Code           The Court rejected the ABA’s position in
cial arena and haven’t seen the effects”       was extensively researched and com-             a 5-4 vote reasoning that the speech lim-
of public funding.                             mented upon by judicial experts from a          its are a violation of the First Amendment.
                                               broad spectrum of the American legal            Justice Antonin Scalia, writing for the ma-
Third, even if public financing is insti-      profession, thus accurately reflecting the      jority, noted that the ABA’s long-stand-
tuted, critics maintain that third party ac-   profession’s long-standing view that            ing support for merit selection over judi-
tors will still bring their points of view     judges should not campaign on how they          cial elections would naturally lead to con-
across through advertising and other pub-      would decide issues, if elected. The ABA        flict between its Model Code announce
licity. Public financing will not preempt      maintained that its prohibition is narrowly     clause and states with electoral judicial
the First Amendment rights of outside          tailored to achieve three compelling state      systems. Justice Scalia wrote, “That op-
groups to present their perspectives to the    interests: maintaining judicial indepen-        position may be well taken…but the First
electorate. The Commission has re-             dence and impartiality, preserving pub-         Amendment does not permit it to achieve
sponded that supplemental funds could          lic confidence in the judiciary, and guar-      its goal by leaving the principle of elec-
be available to offset this publicity.         anteeing due process to litigants. Candi-       tions in place while preventing candi-
                                               dates could still discuss a “myriad of          dates from discussing what the elections
There continues to be much disagreement        proper topics” such as their qualifica-         are about.” If states allow elections, they
over whether increased campaign activ-         tions, their general approach to judicial       must allow “First Amendment rights that
ity is a reason for lack of public confi-      decision-making, and their ideas on court       attach to their roles….We have never al-
dence in the judiciary. Some have sug-         administration. The ABA suggested that          lowed the government to prohibit candi-
gested that increased expenditures on          the independence and impartiality of the        dates from communicating relevant in-
campaign activity are the result of judi-      judiciary is “unquestionably” a compel-         formation to voters during an election.”
cial activism by some state court judges.      ling state interest, justifying regulation of   He found that the clause violated the
                                               speech because of the judiciary’s unique        “strict scrutiny test” of regulated speech
At the ABA’s 2002 Annual meeting, the          role in America’s governmental struc-           in that the clause was neither “narrowly
House of Delegates adopted Recom-              ture. Judges must decide cases impar-           tailored” nor serving of a “compelling
mendation 113, encouraging even fur-           tially, as they do not represent constitu-      state interest.”
ther study of conduct in campaigns and         ents, and “they do not make their judi-
the need to enhance the public’s               cial decisions with the purpose in mind         “This is a bad decision,” said then-ABA
knowledge, trust, and confidence in            of pleasing those who have elected              President Robert E. Hirshon. “It will open
the state judicial systems.                    them.” Therefore, “permitting judicial          a Pandora’s box. We will now have judi-
                                               candidates to commit or appear to com-          cial candidates running for office by an-
THE ABA AND JUDICIAL SPEECH                    mit themselves in advance on matters            nouncing their positions on particular is-
In addition to supporting public financ-       likely to come before their courts would        sues, knowing that voters will evaluate
ing, the ABA initiated efforts to limit the    create at least the appearance of partial-      their performance in office on how
content of judicial campaign speech. The       ity in the judicial decision-making pro-        closely their rulings comport with those
ABA filed an amicus brief in Republican        cess. The ultimate result would be to un-       positions. It is not the type of justice sys-
Party of Minnesota v. White, which was         dermine the public’s trust in judiciary’s       tem the American people want.” Incom-
argued before the United States Supreme        independence and threaten the rule of           ing ABA President A.P. Carlton worried
Court in early 2002. The case concerned        law. Thus, Minnesota’s clause serves the        that the decision would be “the begin-
the constitutionality of Minnesota’s “an-      state’s compelling interest n preserving        ning of the end of judges being different
nounce clause,” which stated “a candi-         public confidence in the judiciary.”            from partisan politicians.” The ABA an-

ABA WATCH                                                           15                                                 February 2003
nounced it would review its Model Code       also found that nearly three out of four     The resource kit also includes informa-
of Judicial Conduct to ensure it meets the   Americans are at least somewhat con-         tion concerning judicial campaign con-
standards of judicial campaigns with re-     cerned about the fairness and impar-         duct committees, which was compiled
spect to the White decision.                 tiality of elected judges who raise          by the ABA and the Constitution
                                             money to finance campaigns. Yet, sur-        Project, responses to criticism of the
PRESIDENT A.P. CARLTON AND                   prisingly, 75 percent of those surveyed      Judiciary Model Programs, informa-
JUDICIAL SELECTION                           found elected judges to be more fair         tion concerning the Constitution
In August 2002, A.P. Carlton was sworn       and impartial than those who are ap-         Project’s Higher Ground Standards of
in as president of the American Bar As-      pointed, with only 18 percent believ-        Conduct for Judicial Conduct, a
sociation during the Annual Meeting.         ing appointed judges were more fair          scorecard of recent campaign conduct,
One of the first initiatives he an-          and impartial.                               resources to ethics education programs
nounced was an “ABA Commission on                                                         for judicial candidates, judicial election
the 21st Century Judiciary.” The Com-        To continue its efforts to reform judi-      voter information card bookmarks, a link
mission will “study, report, and make        cial campaigns, the ABA crafted a re-        to the Brennan Center Court Pester E-lert
recommendations with regard to vari-         source kit, timed to coincide with the       which provides links to articles concern-
ous aspects of state judicial systems        Fall 2002 elections. A.P. Carlton an-        ing judicial independence, and a list of
to ensure continued fairness, impar-         nounced the kit would serve as a             model public outreach programs avail-
tiality, and accountability.” Carlton        means to improve the conduct of ju-          able from the ABA.
stated at the press conference, “We          dicial elections, saying, “We can act
must defuse the escalating partisan          as the conscience of the campaigns,          ABA VERSUS BUSINESS?
battle over America’s courts. Mil-           the advocates for civility, the watch-       Some in the business community, most
lions of dollars are being spent to          dogs for violations of the spirit.”          notably the U.S. Chamber of Commerce,
‘control’ courts in some states much                                                      have challenged the purpose behind
the same way political parties con-          Included in the kit is a model guest edi-    ABA-driven initiatives relating to pub-
trol legislative and executive               torial on the importance of the inde-        lic financing of judicial elections, re-
branches of government. American             pendence of the judiciary, a list of talk-   strictions on judicial campaign finance,
justice is suffering from a bad case         ing points for speeches on the subject,      and judicial campaign speech restric-
of the flu caused by too much partisan-      information concerning the “Tennes-          tions. The Chamber contends, for ex-
ship in judicial elections.”                 see Model” promoting public aware-           ample, that these initiatives are an at-
                                             ness of the importance of an impartial       tempt to establish an unlevel playing
Former judges Abner Mikva and Will-          judiciary, and information about the         field for business participation in judi-
iam Sessions were designated as hon-         Justice at Stake Campaign, which is “a       cial elections, which in very recent
orary co-chairmen, and Edward Madeira        nonpartisan campaign working to keep         years has been on the rise and has had
was named working chairman. This             courts fair and impartial. Justice at        a real impact on outcomes in a number
Commission marks the sixth major ef-         Stake Campaign partners educate the          of key state supreme court races. Some
fort by the ABA “to address the vul-         public and work for reforms to keep          business leaders allege, in particular,
nerability of an independent and ac-         politics and special interests out of the    that these financial and speech-related
countable judiciary, the weakest             courtroom—so judges can do their job         strictures are a response to successful
branch.” Its first charge was to hold        protecting our Constitution, our rights      business efforts to counteract the in-
four public hearings followed by a draft     and the rule of law.” The campaign           fluence of plaintiff lawyers in state ju-
report and recommendation that would         “works to reduce the power of special        dicial races. The ABA denies this mo-
be offered at the 2003 Midyear Meet-         interests, raise the standards of judi-      tivation and has responded that the
ing and a March 2003 colloquium. A           cial campaigns, and protect courts and       business community jeopardizes the in-
final recommendation would be offered        judges from partisan politics.” The          dependence of courts by launching ini-
at the 2003 Annual Meeting.                  Campaign recently published a book-          tiatives that speak in terms of electing
                                             let on “The New Politics of Judicial         pro-business judges.
The announcement of the Commission           Elections,” explaining that 2000 was
was made in conjunction with the un-         a “dangerous” year because of the in-        With the election of Dennis Archer – a
veiling of survey results conducted by       fusion of “big money and special in-         former state supreme court justice – to
Harris Interactive concerning judicial       terest pressure” impacting state su-         the ABA presidency, we likely will wit-
impartiality. In a press release, the        preme court elections that year. Part-       ness further debate over the appropri-
ABA announced that, according to the         ners in the Campaign included anti-ju-       ate scope of regulation of state judi-
study, 72 percent of Americans are           dicial elections groups such as the          cial elections. Please consult the in-
concerned that the impartiality of           American Judicature Society, the             terview of Mr. Archer in this issue of
judges is compromised by the need to         Brennan Center, Common Cause, and            ABA WATCH for some insights into
raise campaign funding. The survey           the Constitution Project.                    his views on this subject.

February 2003                                                   16                                               ABA WATCH
continued from page 1                           come from villages, towns, and cities. We        have. That’s the reason we’ve taken the
                                                represent, I am sure, all political and philo-   position that young people under the age
ebrate the 50th Anniversary of Brown v.         sophical backgrounds. We have judges             of 18 should not be executed. That mat-
the Board of Education.                         and lawyers and prosecutors, defense             ter has not come before the United States
                                                counsel, corporate counsel, and plaintiff’s      Supreme Court. I was in Kentucky on
Q. In your view, what is the role of the        lawyers.                                         January 14, standing with some State leg-
American Bar Association in the legal                 As I mentioned earlier, ours is a mem-     islators as they talked about a Senate and
profession, but also more generally in our      bership organization, and we’re directed         House bill they introduced in Kentucky
society as a whole?                             by our members. Therefore, they bring            to bar the execution of juveniles under
                                                to the Association and the House of Del-         the age of 18.
A. I think you would agree that the             egates, by way of resolutions with at-                 That’s what we’ve said as it relates
American Bar Association is the largest         tached reports, issues that are consid-          to the death penalty. I don’t know what’s
voluntary professional organization in          ered by the members of the House.                controversial about that. That is to say,
the world. We are a membership organi-                You spoke of issues such as capital        we have not taken a position pro or con
zation. We are, therefore, directed by          punishment or the death penalty. I be-           on the death penalty.
members. In many instances, I believe           lieve you know that the American Bar                   You also mentioned racial prefer-
we are — with no disrespect to the other        Association has not taken a position pro         ences. I don’t know what you mean by
outstanding bar associations, and there         or con, meaning for the death penalty or         racial preferences. I do know that the
are a number of them — considered the           against the death penalty. Rather, we re-        facts that we have, at least according to
voice of the legal profession. I think that’s   quested that the states institute a mora-        the 2000 United States Census (and we
a fair assessment. We work to ensure the        torium. And for what purpose? To evalu-          were advised in the Philadelphia meeting
fair administration of justice, and we          ate whether those who are on death row           in 2002). We had 1,027,000 licensed law-
work to improve the justice system              should be there. There may be some, for          yers in the United States. Of that num-
where and whenever possible, if there           example, where DNA evidence may rule             ber, only up to eight percent of us are
needs to be some tweaking or a new              in or rule out their conviction. I think         lawyers of color. When I say lawyers of
look at the way some things have been           we’ve all read in the newspaper or               color in this instance, I’m referring to His-
handled in the past.                            watched on television how this happens.          panics, Asian Americans, Native Ameri-
      When we have been asked, we offer         Even here in Michigan where we don’t             cans and African Americans. When you
legal advice to countries that have             have a death penalty, there was a gentle-        combine our collective demographics, we
changed over or attempted to change             men who was incarcerated for a long num-         are woefully underrepresented in the le-
over to democracies. We have CEELI              ber of years for a sexual assault that he        gal profession.
Program, our African law project, Asian         did not commit that was ultimately dis-                You say, well, how did that happen?
and Latin American projects, and then           covered as the result of DNA evidence.           Well, I would remind you that while I am
through our International Law Section,          A moratorium would give the states fa            very privileged to be President-Elect of
we work with the U.N. to provide the same       chance for a second look, if you will, be-       the American Bar Association, I happen
or similar kinds of assistance to countries     fore they implement the execution.               to be, and I’m sure you know, the first
that would like our assistance. So, we                We have taken the position that            person of color to have that privilege.
find ourselves — for example, with CEELI        people who are mentally retarded should          The American Bar Association does not
— having sent some 5,000 lawyers, judges        not be executed. You might recall in the         have a bright past. It has a very bright
and law professors to different countries       Atkins case that came before the United          future, but its past is not bright at all.
to be of assistance.                            States Supreme Court that they ruled in                For example, lawyers of color could not
                                                favor of a position that we advocated.           even join the American Bar Association just
Q. In its mission, the ABA states that it             We have taken a position, moreover,        to be members. Up until 1943, those who
is a national representative of the legal       that juveniles under the age of 18 should        attempted to join had to sign an application.
profession. Can the Association achieve         not be executed. In those states, like           On that application, you had to list your
this goal and at the same time stake out        Kentucky, for example, that has a death          ethnicity. And if you listed that you were a
positions on controversial issues that sig-     penalty, juveniles under the age of 18 can-      person of color, your membership was not
nificantly divide the ranks of the legal        not buy cigarettes. They cannot buy al-          accepted. To assure that the membership
profession, such as policy recommenda-          cohol. They cannot enter into a contract.        stayed pure, they had lawyers within the
tions dealing with the death penalty, the       They cannot join the armed services. Yet,        American Bar Association that would
right to abortion, racial preferences and       they can be executed.                            visit law firms to make sure, if they didn’t
tort reform?                                          We have indicated that, by way of          recognize a name or know who the per-
                                                common sense, we can appreciate the fact         son was, that the lawyer happened to be
A. Well, let’s start with the ABA mem-          that young people under the age of 18 do         at least someone not of color.
bership. We have a diverse membership.          not have the same mental processes that                Again, when you start thinking
We come from large and small states. We         someone who is an adult happens to               about the law, the United States Supreme

ABA WATCH                                                            17                                                  February 2003
Court — not the current sitting, obvi-         you may recall, he created a task force or     Powell was president of our Association.
ously — gave us Dredd Scott, Plessy v.         commission to look into it.                    I would like to say that the law that he
Ferguson, Kurematsu v. United States. I             The result of it was that I believe       helped to implement while he was on the
believe if you check back in history, it       there were initially 13, — and if you count    United States Supreme Court, namely
wasn’t until probably about the 1940s that     the last four that were pardoned several       Bakke, remains and that we do not see
the first person of color was ever a law       days before he left office, there were 17      judicial activism take place in striking
clerk in the United States Supreme Court,      incidents — where in Governor Ryan’s           down Bakke. But having said that, there
and I believe that first person was Will-      view there were grounds for a pardon.          have been a number of things that of
iam T. Coleman, who ultimately was ap-         Governor Ryan, said he read all of the         course, throughout life, in the years since
pointed Secretary of Transportation by         information. I confess to you I have not       Justice Powell was then president, that
one of our esteemed presidents.                read it.                                       have changed in our profession.
      So, the Bar Association or the legal          A.P. Carlton, the President of our              Interestingly enough, just as an
profession does not have a proud past.         Association, did speak on this issue. I        aside, when Mr. Justice Lewis Powell was
It does not have a past that would be          would say, parenthetically, that it was        president of our association, women
appealing to students of color looking         entirely consistent with one of our local      didn’t have any real roles to play in our
for a profession beyond graduating from        newspapers here. The Detroit Free Press,       association or in law school. Yet when
law school. With that in mind, the Ameri-      which is a Knight-Ridder publication, in       you go to law school today, you find
can Bar Association back in the early          their editorial, applauded what Governor       some of the most talented, outstanding,
1980s passed — coming from the Sec-            Ryan did and called upon other state leg-      brilliant women that you’d ever want to
tion of Legal Education in the Michigan        islatures in other states to consider look-    meet in life in our respected law schools. So,
Bar — Standard 212, which called upon          ing at those who are on death row, with        things have changed.
law schools to enact an affirmative ac-        the thought of evaluating whether they               We focus a lot of energy on legal is-
tion program. They had Standard 211 that       really should be there. I believe one of       sues and not the so-called social issues, as
came out of an issue about Jones Uni-          the local newspapers in Louisville, Ken-       one might describe them, depending upon
versity, which was applying for accredi-       tucky, yesterday had an editorial that said    what you call social or how you refer to
tation, and it had to deal with fairness of    the same or almost the same.                   them. By definition, what might be legal for
hiring faculty, etc.                                                                          one might be social for another.
      In 1986, the American Bar Associa-       Q. The Washington Post has given it
tion passed Goal 9 to promote opportuni-       some attention. I also know the new Gov-       Q. I’m going to jump ahead to another
ties for women and minorities in our pro-      ernor of Maryland is pro-death penalty         question because you touched upon it
fession. And so, with lawyers of color         and is lifting the moratorium.                 in your answer about racial preferences.
being woefully under-represented, I don’t                                                     The ABA has filed an amicus brief in the
think we’re talking about racial prefer-       A. I believe what I’ve read is that Gov-       6th Circuit...
ences. We’re talking about uplifting and       ernor Parris Glendening, when he was in
giving people of color an equal opportu-       office, called for a moratorium for one year   A. Excuse me. I hate to interrupt you,
nity to become members of our profes-          so that they may evaluate those who are        but you mentioned racial preferences and
sion, and I related it only to the issue of    on death row. And I believe I’ve read          I did not use that phrase. If you want to
the bar. When you take a look at issues        that the incoming governor has a differ-       talk about race, I’d be delighted to speak
like that, while they’re worthy of dis-        ent point of view, as you’ve pointed out,      to that issue. I don’t think that there’s
cussion, I don’t think they rise up nec-       and plans to end the moratorium that was       anything in the policies of the American
essarily, depending upon their context,        implemented by Governor Glendening in          Bar Association, whether Standard 212
to controversies.                              advance of the one year.                       or Goal 9 to improve the opportunities for
                                                                                              women and minorities in our legal pro-
Q. You mentioned the death penalty             Q. What do you think of former ABA             fession, that deals with racial preferences.
moratorium. Has the ABA reacted at all         President Lewis Powell’s preference for        What it speaks to, in my mind, is creating
to the now-former Illinois Governor’s de-      non-involvement in controversial politi-       a level playing field. If you want to talk
cision to commute the sentences of the         cal issues? How would you respond to           about using race as a factor, I would be
inmates on death row in Illinois?              that? He made that comment I guess in          delighted to visit with you on that issue.
                                               the 1960s. Has the ABA changed, and            I believe the question, which you are ask-
A. A. P. Carlton, our president, did make      do you agree in general with his ideas on      ing, has to do with that. So, if you’ll ask
a statement indicating that he felt that the   that?                                          your question in that context of dealing
action of Governor Ryan was courageous                                                        with race as a factor, I’ll be delighted to
in terms of first calling for a moratorium     A. Well, I would say to you that our           address it.
when he became concerned about                 membership is focused on our profession
whether those on death row had been            legal issues. A lot of things have             Q. What is the ABA’s rationale for sup-
given a fair opportunity to be tried. As       changed since former Justice Lewis             porting Michigan’s use of racial prefer-

February 2003                                                      18                                                  ABA WATCH
ences in the 6th Circuit case and before            Well, when you consider our total          people of color in jurisdictions where
the Supreme Court, will the ABA be filing      cumulative numbers in terms of our popu-        there can be a discretionary call as to
another amicus brief, and, if so, what po-     lation base and you appreciate the fact         whether someone is charged with a capi-
sition will it be taking respecting diver-     that we are woefully underrepresented, I        tal case or not charged with a capital case.
sity and whether diversity is a compel-        can’t begin to tell you how pleased I was       For some reason, there are more people
ling government interest?                      to see that 12 national Hispanic organiza-      of color on death row compared to our
                                               tions, including the Hispanic Chamber of        population percentage. The same is true
A. Not to be disrespectful to you or the       Commerce, went to speak and visit with          with the prison population. So, to go to
manner in which the question was asked,        President Bush to make their case to a          law school and get an education, do I
but I’d rather put the question this way.      President who speaks fluent Spanish.            think that race as a factor would be ap-
Will the American Bar Association file         They indicated that they felt, as people        propriate? Yes.
in the University of Michigan Law              of color, as Hispanics, that we were in a
School case an amicus brief support-           crisis, and they pled with the President        Q. Shifting gears a bit, the ABA’s gen-
ing the University of Michigan’s use of        to come down on the side of the Uni-            eral statements initially were very sup-
race as a factor? The short answer is          versity of Michigan so that Hispanics           portive of the Bush Administration’s war
that the amicus brief has been written.        and other people of color would not             against terrorism. But the ABA House of
I’ve not had a chance to read it, but I        lose the opportunity to receive an edu-         Delegates and the Terrorism Task Force
believe it will be filed soon and within       cation. They felt that race as a factor         have consistently taken positions that
the time frame in order to meet the dead-      was important.                                  oppose, in pertinent part, the
lines as set by the Court’s briefing dead-          So, yes, I think you’ll find in the        Administration’s actions or initiatives.
line. I don’t believe it’s due, filed in the   amicus brief support for the use of race        These include the ABA’s positions con-
court, until somewhere around February         as a factor by the University of Michi-         cerning significant aspects of the
16th. Somewhere between the 13th and           gan. It is absolutely needed.                   President’s authority to detain enemy
the 16th, at that point. So, there will be          What I also find most interesting is       combatants and the use of military com-
time to file.                                  that the legal profession is woefully be-       missions. The Wall Street Journal sug-
     Race is an appropriate factor, I be-      hind corporate America. Corporate               gested that the ABA’s resolution con-
lieve, if you take a look at Bakke, going      America recognizes that their consumer          cerning military commissions was “one
back to Mr. Justice Lewis Powell’s opin-       base, and a growing consumer base, con-         of the all-time snubs of a United States
ion. Look at our legal profession, with        sists of people of color. They want to          President in peace or war.” What role
1,027,000 licensed lawyers in the United       assure themselves of a market share of          does the ABA see itself playing in the
States and only eight percent of us are        the new consumers. Therefore, I’m sure          war against terrorism, and in scrutinizing
lawyers of color — when I say lawyers of       you are aware that they have affirmative        actions taken by the federal government?
color, I mean in the context of Asian, Na-     action plans where they go out and seek
tive American, Hispanics and African           suppliers to their businesses, and they         A. Well, first, just let me say at the out-
Americans. I find that we’re woefully          have other ways of addressing that issue        set that regrettably we are not in the posi-
underrepresented.                              because they recognize that there’s an          tion to create headlines or to necessarily
     What I also find interesting, and         imbalance.                                      expect fair valuation of whatever it is that
unlike what I believe occurred in                   We’re ready, or almost ready, to go        we do. The great thing about the free-
Hopwood, is that, you have in the Michi-       to war. We know that on the basis of the        dom of the press, and including the pub-
gan case General Motors and a number           body-bag count that came in from Viet-          lications that you’ve utilized in the soci-
of other corporations, 30 or so, which filed   nam that, on a percentage basis, more           ety, is that you can say whatever it is you
amicus briefs indicating that the use of       people of color died in that conflict. I        darned well please, and you’re very well
race as a factor was quite appropriate.        pray that the President doesn’t feel the        protected by adequate Supreme Court
They, corporate America, need a diverse        need to take us to war, but if we do be-        rulings, as well as statutes. So, just let me
background and a diverse workforce. If         cause the President as our commander-           say that I disagree with the analysis of
you look back at the social scientists and     in-chief believes it is in the best interest    the Wall Street Journal, and offer some
demographers in terms of what they were        of America, I would not be surprised to         of the facts.
writing back in the very early 1980s, they     see again a disproportionate amount of                It is not accurate to say that we “have
were saying that based upon a relaxation       people of color coming back in body-bags        consistently” taken positions that op-
of immigration rules and the birth rate,       whether it’s from Iraq or Korea or wher-        pose the Administration’s actions and
there was going to be this phenomenon          ever it is our President believes it’s in our   initiatives. Our position on military com-
referred to at the time as the “browning       best interest. So, using race as a factor       missions set out a number of principles
of America.” They believed that some-          would, I think, be most appropriate.            that the House of Delegates believed were
where around 2056, the majority of people           One final point. If you look at the        fundamental concepts of due process.
living in the United States would be mi-       people on death row, you will find that,        The initial military order signed by the
norities or people of color.                   there seems to be a larger percentage of        President was brought up as a concern

ABA WATCH                                                           19                                                 February 2003
to many Americans — conservatives, lib-        should have access to judicial review to       may not be something that we may be
erals, as well as those in the middle of the   challenge their detention, and two, that       proud of, this is still the best country in
road.                                          citizen detainees should not be denied         the world.
     Our policy, adopted in February           access to counsel. The recent decision              Having said that, despite the fact that
2002, recommended that the detained not        by the 4th Circuit in the Hamdi case, while    an attorney general may say something
be held indefinitely without trial, that the   disappointing in that it did not address       or the President may advocate something
detained be given prompt notice of             the access to counsel issue, is notewor-       doesn’t mean that it comes straight from
charges, that the detained have access         thy because the court specifically finds       the Bible or that either one happens to be
to counsel, that the detained have the         that the “detention of the United States       accurate. It may be that if you point some-
assistance of an interpreter, and that the     citizens must be subject to judicial re-       thing out and say, Mr. President, have
detained have an adequate time to pre-         view.” The court went on to say that           you thought about this as an alternative,
pare a defense.                                Hamdi’s petition is squarely within the        then there is some modification that oc-
     When the Department of Defense            great rich purview, since he is an Ameri-      curs. So, it’s not a matter of being disre-
issued it’s regulations a short time later,    can citizen challenging his summary de-        spectful to the President, but rather to
they tracked closely our recommenda-           tention for reasons of state necessity....”    point out certain rights and the like.
tions. We offered our views and analysis            We think it is unfortunate that the            For example, assume you are de-
in a very analytical way for the President     court did not address an issue we believe      tained and talk on a telephone, and your
and for the Attorney General to consider.      to be of equal importance, and that is ac-     telephone calls are going to be monitored.
Fortunately, the House passed a resolu-        cess to counsel. As a Task Force prelimi-      That goes to the heart of what we talked
tion and the administration had a chance       nary report stated, the right to judicial      about in law school, that there should be
to look at it. I believe they found a num-     review would be hollow unless citizens         a freedom of flow of conversation be-
ber of our recommendations to have merit.      could consult counsel in appropriate           tween a client and an attorney. Those are
Now, when you make a recommendation            cases to help them appropriately chal-         issues that were raised, and when deci-
that is different from what’s being con-       lenge their detention.                         sions are made, while people may dis-
sidered, and the ultimate or final result           I might add that at no time did the       agree, there’s still respect for the law.
was a modification of what was originally      American Bar Association ever advance               I would remind you of some remarks
contemplated, then I don’t think we’ve         or say that someone should not be de-          that Justice O’Connor wrote in an opin-
done a disservice to the country or to the     tained. We just said, if you’re going to       ion. I can’t recall the name of the opinion.
President. And I don’t think that is being     be detained, you should have access to         But she wrote something to the effect that
disrespectful to the President.                counsel and access to judicial review.         we depend upon our citizens to respect
     I might add that you did not mention                                                     the Court’s opinion and the rule of law.
a unanimous resolution in support of the       Q. Just to follow up, one of the national      The United States Supreme Court, doesn’t
President and the manner in which he has       security and intelligence concerns offered     have an army to enforce its court orders.
conducted himself, which we are all very       by the Administration as leading to its        They expect the citizens to obey the rule
proud of, and the manner in which the          position in barring counsel is the fear that   of law.
President deal with the issue of 9/11.         messages could be passed. Do you think              I would make this observation, and I
     When a person runs for President,         the ABA has paid enough attention to           dare say that I don’t think there would be
he doesn’t think about whether he is go-       these concerns?                                too many who would quarrel with it. The
ing to have to deal with somebody flying                                                      great thing about our profession as law-
an airplane into the twin towers, into the     A. I take the position that we have some       yers and as members of the American Bar
Pentagon, and some brave Americans             very outstanding lawyers who work in           Association is that we do respect the rule
taking another plane down that was go-         the White House and who work in the            of law. We do work very hard to cause
ing to be flown into the White House.          Justice Department. They, along with           everyone within the confines of our in-
Those are not the kinds of things that         others of us in the legal profession, do       fluence to respect the rule of law. Even
you anticipate when you are running for        our very best and want nothing more than       when we may disagree with it, we never-
the Office of President. But to the            to keep our country safe and secure.           theless must respect the rule of law. But
President’s credit, he dealt with it.                Having said that, there are still cer-   that doesn’t mean that you cannot chal-
     But please remember, we’re trained        tain rights that we as citizens are entitled   lenge things.
in the law. Because we’re trained in the       to. The thing that makes America great, I           After all, you find that even mem-
law, we have a respectful responsibility       believe, is democracy and the respect for      bers of Congress are suing the President
to share our views, and we did that. As I      rights, and respect for those rights           of the United States, if they think the Presi-
suggested, the regulations, when they          whether they’re in good times or bad.          dent has overstepped his authority. For
came out, were modified.                       That’s what makes us, I think, so great as     example, there’s been litigation over
     As to enemy combatants, the two           a country and why many are just envi-          whether or not Vice President Chaney
principal recommendations of our task          ous of our freedoms. Despite all of the        should have to give up some information
force were, one, that citizen detainees        issues that we’ve had in our past that         about who came in to see them on issues

February 2003                                                      20                                                  ABA WATCH
regarding their policy on energy. People         having won the right to become Presi-          sort of sits on it. So, there were a
sue the President, they sue the Vice Presi-      dent of the United States — whether we’re      number of judicial candidates who
dent, and they sue other entities in order       talking about immediate past President         never got a hearing.
to get judicial review of something. I           William Jefferson Clinton or the current             For example, since you raised the
wouldn’t hasten to infer disrespect, — it        President, George W. Bush — they’ve            question, Judge Helene White on the
is to utilize the judicial system, and that’s    earned the right to nominate who they          Michigan Court of Appeals — I believe
why it’s there.                                  think it would be in the best interests to     she was nominated first in 1997 by Presi-
                                                 serve a country as a member of the fed-        dent Clinton to sit on the 6th Circuit court
Q. Moving on to a question about the             eral judiciary.                                of appeals. She never even had the cour-
Supreme Court, there’s much speculation                And when the names are ad-               tesy of a hearing. Kathleen McRee Lewis
that there may be one or two openings            vanced, it goes to the United States           -- again, another Michigan person. Her
on the United States Supreme Court this          Senate for advice and consent.                 father was on the 6th Circuit Court of
summer. What role do you think the Sen-          Whether the majority party and the             Appeals. Her father was the Solicitor
ate should play in scrutinizing nominees         chair of the Senate Judiciary Commit-          General of the United States. Talk to any
to the Supreme Court?                            tee are Democrat or Republican, there are      lawyer here in Michigan, and I think they
                                                 always going to be philosophical differ-       would objectively tell you that she was
A. First of all, I don’t think I’m in a posi-    ences, as we have witnessed — for ex-          more than well qualified, a very bright and
tion to tell the United States Senate what       ample, when the Senate was Republican          brilliant lawyer. She never got a hearing.
they should do. On the other hand, let           during the Presidency of President             So, when those kinds of things occur, it
me make the following observation. As a          Clinton, or in the short period of time that   raises questions, and I’m sure that Presi-
trial lawyer, if you were a judge and made       it was Democratic under George W. Bush.        dent Bush and others who follow those
a statement that clearly indicated that,               You’re always going to have differ-      of his nominees would be able to say
under a certain set of facts, this is how        ent philosophical or even political issues     perhaps the same thing.
you would rule on a case, and I appeared         raised by the United States Senate. That             I will say that, at least as it relates to
before you, I’d file a motion to recuse          is, one would argue — I wouldn’t argue,        the American Bar Association, the Fed-
you because you cannot be fair and im-           but one would argue — that it’s fully          eral Judiciary Committee discharges re-
partial to my client. That’s what makes          within the Senate’s right under the con-       sponsibility in the same manner consis-
our system of justice one in which re-           cept of advice and consent to the Presi-       tently, as it always has. What I find to be
spect for the rule of law remains very high.     dent. They have the authority to accept        at least rewarding in this instance is when
There’s no predisposition. You would             or reject, as we have seen occur in both       President Bush invited a number of us to
like to think that in every case, the judge      administrations.                               the White House to set forth his recom-
will listen to the facts and apply the law,            So, what you’ve described is a fact      mendations going forward in terms of how
whether ruling on a motion or if they’re         of life that we will see. Most judges will     to handle judicial vacancies. He was in-
hearing a case without a jury. I say that        go as close as they can, as they think         clusive enough to observe that the Ameri-
even in the light of the most recent United      would be ethical, in trying to be respon-      can Bar Association’s Federal Judiciary
States Supreme Court decision coming             sive to a United States Senator’s ques-        Committee did its work and referenced
out of Minnesota on judicial elections,          tion, because no one wants to have the         how it was referred to, at least by some
whether or not judges in judicial elections      wrath of a United States Senator oppos-        of the Democratic Senators, as the gold
should be free to articulate beyond say-         ing them or against them. So, they will        standard.
ing, “I will be fair and impartial,” and, “I’m   answer to the best of their ability within           I recall that when several of the nomi-
sorry, I can’t comment on it.”                   the ethical confines of the responses to       nees were being considered by the Judi-
                                                 the questions that have been asked.            ciary Committee — I believe Senator
Q. In thinking about what the ABA has                                                           Hatch was waving a letter of transmittal
said about threats to judicial indepen-          Q. Do you believe the process has got-         — that found a particular nominee to be
dence, how should we evaluate various            ten worse over the past couple of years?       well-qualified by the ABA, though they
efforts by members of the Senate to con-                                                        were turned down by the Senate Judi-
sider the ideology or judicial philosophy        A. I would make the observation, and           ciary Committee. So, the Federal Judi-
of nominees? Is it appropriate for the           there would be those who would argue           ciary Committee and the American Bar
Senate to probe into a nominee’s views           differently, I’m sure, that in some in-        Association have been consistent in dis-
about the merits of the various existing         stances, the nominees of President             charging their responsibility, irrespective
doctrines or lines of cases? Two ex-             Clinton, whenever they were made, even         of who the President of the United States
amples might be Roe v. Wade and                  at the beginning of his first term or sec-     happened to be or who the majority was
Miranda.                                         ond terms — were treated as if he was in       in the United States Senate.
                                                 the last six months of office. That is to
A. Well, no matter what you would use            say, sorry, fellow, this is not going to       Q. And they accomplished this in —
as an example, I take the position that,         be approved by us, and the Senate just         what was it — 60 days or 90 days?

ABA WATCH                                                            21                                                  February 2003
A. On average, unless there’s been             ABA. It goes to the United States Sen-        they came before those judges be-
some problems, I believe you’ll find it’s      ate. We will do our work. We will do          cause they don’t know who might
somewhere around 35 days that they’ve          our work in 35 days, on average. And          have given them money, or whether
been able to complete their work.              I was very pleased that the President         they would be influenced by it. The
                                               concluded that the American Bar As-           reality of it is electing judges, or in-
Q. I think the President has proposed a        sociation, when he referred to the Bar        deed, for that matter, electing United
time limit for confirmation...                 Association, would do its work in get-        States Senators or Congress or even
                                               ting the name of a nominee that he            Presidents, there’s the question
A. Well, when we were at the White             would advance. And so, we will dis-           whether I will be treated fairly.
House, the President asked members of          charge our responsibility.                         It’s really important as it relates to
the Federal Judiciary to consider advis-                                                     judges. I will tell you that, having served
ing the President within one year that         Q. In 1987, the ABA Commission on the         on the Michigan Supreme Court and
they’re going to resign or take senior sta-    Separation of Powers and Judicial Inde-       having visited with my colleagues, our
tus, as the case may be. Within that one       pendence had outlined some suggestions        rules are very tight in Michigan. That
year, the President proposed that he           from the Miller Center, and they advo-        is to say, when I was on the court, and
would choose a nominee and have the            cated a timeline: nominations within 90       I think it’s still true today, a committee
nominee vetted by the FBI. That would          days and confirmations in a similar           can solicit funds on behalf of a candi-
take place in the first 180 days. At either    timeline. It was interesting that the ABA     date. A candidate cannot solicit funds.
the 180th day or some time before, the         had urged this timing for vacancies.               If I walked up to you and you were
President would then submit the name                                                         a judge here in Michigan, and you were
along with the findings of the FBI to the      A. I sort of suspect when you have the        running for election, if I offered you a
Senate Judiciary Committee.                    President and the United States Senate        check for whatever dollar amount, you
      He then proposed that the Senate         in the same party, they’re going to be able   could not accept it. I could mail it to the
Judiciary Committee act within 90 days         to find a way to get to where they need to    Chairman of the Finance Committee. And
and that the full Senate act within 90 days.   be. The end result depends on who the         it would get into the coffers. There’s a
      If the timing was right, you would       President will nominate for the vacancies.    maximum amount that you can give.
not have a vacancy. For example, in the        With 51 members, the reality of it is — at         I would simply say that in talking
6th Circuit Court of Appeals, we have a        least it’s been my observation — not ev-      to my colleagues after the elections
number of vacancies and they’ve been           erybody walks in lock-step, even within       were over, as we talked about cases,
operating with a number of vacancies.          one’s own party. The same can be said         the great thing is that we never talked
You also have some other federal circuits      for the 48 Democrats in the United States     about it from the perspective of being a
that also had vacancies. There was a           Senate. So it’s a matter of who the nomi-     Democrat or Republican, no matter who
vacancy or two on the 4th Circuit for          nee happens to be and the opinion of          happened to be governor at the time,
the longest time. As I recall, there was       those who must vote on that nominee.          whether there was a Republican gover-
a hint or some suggestion, if not testi-                                                     nor or a Democratic governor. But
mony, that although they were operat-          Q. Moving on, you served on the Michi-        rather, we would look at it in terms of
ing with a vacancy, no more judges were        gan Supreme Court. Michigan holds ju-         what are the legal issues and what is
needed. That was, of course, at a time         dicial elections. Do you think that state     the rule of law.
when President Clinton was proposing           court justices who are elected are at              The other thing I found fascinating,
a nominee to the 4th Circuit — and I           greater risk of having their independence     and I don’t know if it’s ever occurred on
think they went through two or three           and impartiality jeopardized than judges      the United States Supreme Court, but I
judges of color that never had a hear-         who are appointed?                            know it has on the Michigan Supreme
ing. President Clinton then appointed,                                                       Court — we’d have meetings and say,
in a recess appointment, Roger Gregory,        A. No, I don’t. Not at all. As a matter of    you know, we ought to hear this case be-
to the 4th Circuit. To his credit, Presi-      fact, if you take a look at some of the       cause we think it’s worthy and something
dent Bush, after doing his own evalua-         surveys that have been done or polling        ought to be done here. And there may be
tion, submitted the name of Roger Gre-         that’s been done, you will find, interest-    a sense of everybody affirming and writ-
gory for the 4th Circuit and he was con-       ingly enough, that the voting public has      ing an opinion on it or reversing. We’ll
firmed by the Senate.                          more faith in those who are ultimately        hear the case. We’ll read the briefs that
                                               elected than those who are appointed.         were submitted by the lawyers and we
Q. So you support some of the                  At the same time, I find an interesting       hear the oral arguments. We go into a
President’s ideas regarding the confir-        twist. Even though they have a higher         hearing room following the oral argu-
mation process?                                degree of confidence and respect for          ments and take a vote in terms of how
                                               those who run for office, the voters in       we’re going to do it. We unanimously
A. It’s not a matter of whether I              those polls were concerned about              say we’re going to affirm or reverse. In-
would support it or not or even the            whether they, would get a fair shake if       variably, every now and then, whoever

February 2003                                                      22                                                ABA WATCH
got the opinion looked at the law — not        A. It is the manner in which things           A. You know, the great thing about be-
the law, as given to us by the litigants and   take place. Even in retention elections.      ing lawyer is that, at least, we would like
argued in court. But when we looked at         I remember there was a retention elec-        to think that no one controls who we are,
the law, we found that we could not af-        tion in Florida that was quite caustic        what we do, what we think, and the like.
firm or could not reverse and ended do-        because a justice ruled a particular way      The reality of it is that when we get a no-
ing completely the opposite.                   on a case and folks with money who            tice from the court, the bell rings and the
      I’d like to tell you, and the only       had the ability to do something wanted        light bulb goes on and we know that we
way you’d know is if you were in that          to try to take that person off the bench.     do have responsibilities. And if the court
room, as long as I was privileged to           And there still has to be money raised,       says be here at a certain time for a trial or
serve on the Michigan Supreme Court,           even in retention elections. In               a hearing, we’re there.
nobody ever talked about who ever              some states, you’re appointed for                   I say all that to suggest that the
gave them money. Frankly, nobody               14 years, you can’t run again, and            American Bar Association’s position is
looked at it; nobody cared. We just            the like, and it’s all over. You serve        to promote the rule of law and advocate
wanted, of course, to serve the public.        one term, whatever that numerical             for our profession. I can’t imagine any
We didn’t talk in terms of our governor        term is, and that’s it.                       lawyer who thinks that promoting the
was a Democrat, or a Republican, or                                                          rule of law is a waste of time, irrespec-
whatever was the case. We never dealt          Q. Well, the ABA has increasingly             tive of your idealism, whether you hap-
with that at all.                              advocated public financing of judicial        pen to be labeled as Republican, Demo-
                                               elections.                                    crat, liberal, conservative, or moderate.
Q. Do you think this experience is                                                           The rule of law is very important. I think
unique to the system Michigan has?             A. I think that’s because of what we’ve       we saw that on September 11th when we
                                               learned about what people have told us        were attacked.
A. Every now and then, you can                 in focus groups and what polls have sug-            Here in Detroit, for example, we
find a court that loses its collegial-         gested to us.                                 have the largest population of Middle-
ity. When I was on the court, we had                                                         Easterners, outside of the Middle East
great collegiality. What I mean by             Q. Do you think Michigan needs to do          itself, and yet there was the utmost re-
that is that, even if we disagreed with        this? From what you’ve described to me,       spect shown to our neighbors and
one another and wrote a dissent, the           it doesn’t seem so.                           friends who we either do business with
dissent would be on the law. It would                                                        or whose stores we shop at or who we
not be personal. Everybody got                 A. Given the economy right now, I don’t       buy gas from at their gas stations. This
along exceedingly well. We met with            think many states are going to even look      occurs because of respect for the rule
Wisconsin and Minnesota justices               at it. We have a new Governor, Jennifer       of law, and that’s what we, as lawyers, I
and exchanged ideas on how we                  Granholm. She is now dealing with a defi-     think do best.
could improve the administration of jus-       cit that is somewhere around $1.6 billion,          The American Bar Association is
tice. It was a fabulous time to have been      and, looking into the next year, which I      at the cutting edge of providing excel-
on the Supreme Court.                          think starts October 1, they’re talking       lent continuing legal education so that
     I’d like to think that all courts are     about a projected deficit of $1.8 billion.    we, as lawyers, can represent our cli-
like that. Invariably, though, once in a       So, nobody’s likely to increase spend-        ents and know the law and the latest
while you’ll find someone who is an ab-        ing. Public financing of judicial elections   nuances. When issues come up as to
erration. People ultimately find out and       is not likely to be higher on the legisla-    whether or not we ought to continue to
that person ultimately is not success-         tors’ priority list when they may have to     be regulated by our state’s highest
ful in being elected. I don’t know how         cut down or cut back on supporting pub-       court, or should be regulated by the
it’s done. Sitting justices of the court       lic programs and public education.            SEC under the Sarbanes-Oxley Act, we
don’t bad-mouth the person, or take out                                                      have advocated and made some recom-
ads that say, this guy’s really a jerk. But    Q. Just to wrap up, what would you say        mendations in that regard. I think that,
rather, I think people just sort of have       to disgruntled conservatives who might        irrespective of one’s philosophy — lib-
an appreciation for it. The media picks        feel that it is a waste of time to join the   eral, conservative, moderate, whatever
it up or lawyers pick it up, or whatever       ABA? I think there are two different per-     you care to label a person — I would
the case may be, and generally, that           spectives. There are some policy posi-        respectfully suggest that they would
person’s not successful.                       tions that, conservatives may not agree       want to have their views heard,
                                               with, but they want to stay involved to       shared, and ultimately recommended
Q. From what you’ve just said, confi-          have their voice heard and engage in the      to the SEC in terms of their regulatory
dence in the courts should increase. I         debate. And others decide not to partici-     responsibilities.
like them already. But, you know, it           pate. They don’t want their dues going              The same thing could be said
seems there is concern about raising           towards lobbying or other efforts to pro-     when, under Gramm-Leach-Bliley, the
campaign funds.                                mote positions they may not agree with.       ABA sued the Federal Trade Commis-

ABA WATCH                                                          23                                                February 2003
sion, when we were seeking what we                        Also, take a look at our pro bono               be evicted or feel that their rights are be-
thought was a reasonable waiver.                    work. Lawyers who are labeled conser-                 ing abused, we prevent more violence
When that did not come, of course, we               vative, moderate, or liberal give their time          that you will never read about.
filed a lawsuit as a bar association, not           to give back to people who are needy.                      Go back to your observation. You
that we think that we’re better than any-           And despite the great work that the Le-               suggested that since 9/11, there may have
body or that somehow we should get                  gal Services Corporation does and the                 been a number of things stopped that we
dispensation. But again, when people                funding that they provide the legal ser-              don’t know about as a general rule be-
disagree with the President, or with                vices entities around the country, and                cause of the policies that have been put
Congress, or in the case of Vice Presi-             despite all of the pro bono work that’s               into play by the Attorney General or by
dent Cheney, when they wanted the                   provided by firms like ours, there’s still an         the President. I’d suggest to you that I
energy task force records, they sued                unmet legal need of about 80 percent.                 can’t quantify the violence that’s been
him. It doesn’t mean that they don’t                      We have, from time to time, regret-             stopped, but when somebody has been
like the Vice President or that they                tably seen situations where people have               helped by a lawyer, even when they
don’t respect the Vice President. They              gone into their places of employment,                 lose, someone has cared enough to lis-
just thought that they were entitled to             having been terminated or wrongfully                  ten to them. These lawyers have
the records, and the court said, no,                chastised or whatever the case may be in              shared with them why they lost and
you’re not. We’re in court suing the                their mind, and they act out in a way that’s          what they should do to be respectful,
Federal Trade Commission because we                 not beneficial to society, and generally              and that has helped. That’s why,
think the failure to give the waiver was            people wind up hurt. I would suggest to               whether you’re conservative, moder-
incorrect. We take a look at the rule of            you that the lawyers who engage in legal              ate, or liberal, you ought to join Ameri-
law in all that we do.                              services work where people are going to               can Bar Association if you’re a lawyer.

             In its mission statement, the American Bar Association declares that it is the “national representative of the legal profession.”
 And, not surprisingly, as the largest professional legal organization in the world, many policy makers, journalists, and ordinary citizens do
 in fact look to the ABA as a bellwether of the legal profession on matters involving law and the justice system. This is why debate about
 its work and activities—and the role that it plays in shaping our legal culture—is so very important.
             ABA WATCH has a very simple purpose: to provide facts and information on the Association, thereby helping readers to assess
 independently the value of the organization’s activities and to decide for themselves what the proper role of the ABA should be in our legal culture.
 We believe this project is helping to foster a more robust debate about the legal profession and the ABA’s role within it, and we invite you to be a part
 of this exchange by thinking about and responding to the material contained in this and future issues.
             In this issue, we are pleased to offer an interview with ABA President-Elect Dennis Archer. President-Elect Archer very graciously
 granted us an interview in his Detroit office, and we are printing his thoughts unedited. We think you will be very interested in his perspectives
 concerning the ABA and the war on terrorism, judicial selection, racial preferences, and his plans for his presidency, among other topics. We are very
 grateful to President-Elect Archer for speaking with ABA WATCH.
             This issue also presents a thorough review of the ABA’s efforts concerning state judicial selection. We survey the ABA’s efforts on merit
 selection, public financing of judicial campaigns, and judicial speech in addition to ABA President A.P. Carlton’s new Commission on the 21st
 Century Judiciary. We also offer in-depth reviews of the ABA’s task forces concerning corporate governance and the Sarbanes-Oxley bill, class action
 reform and a summary of last meeting’s House of Delegates debate concerning a resolution on judicial confirmations. And, as in the past, we digest
 and summarize actions before the House of Delegates.

                          The Federalist Society for Law and Public Policy Studies
                          1015 18th Street, N.W., Suite 425
                          Washington D.C. 20036
             J. MADISON

February 2003                                                               24                                                        ABA WATCH

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