The Federalist Society

Bar Watch Bulletin August 2005

Annual Meeting Preview

August 1, 2005

The American Bar Association Annual Meetings take place from Thursday, August 4 through Tuesday, August 9. Once again, ABA WATCH will be reporting live from the meetings. Today we preview upcoming resolutions and other highlights from the meetings.

Resolutions to be Considered by the House of Delegates

The American Bar Association House of Delegates will consider dozens of resolutions at its annual meeting in Chicago on August 8. If adopted, these resolutions become official policy of the Association. The ABA, maintaining that it serves as the national representative of the legal profession, may then engage in lobbying or advocacy on behalf of its members. Resolutions scheduled to be debated at this meeting include recommendations concerning judicial independence, the Voting Rights Act, the homeless, domestic violence, oceans policy, criminal defense, and a federal shield law for reporters. We preview a few of these recommendations below.

Judicial Independence

The State Bar of Texas offers recommendation 10A, which "deplores attacks on the independence of the judiciary that demean the judiciary as a separate and co-equal branch of government." The recommendation calls for the ABA to affirm that "a fair, impartial, and independent judiciary is fundamental to a free society" and calls upon all Americans to defend the role of the judiciary. A second recommendation, offered by House of Delegates member and former ABA president Jerome Shestack, was incorporated into this report.

The sponsor notes that judicial independence is a long-established goal of the ABA. According to the sponsor, "Judges must be able to decide cases from a position of neutrality, influenced solely by the facts and law, and not subjected to political and public pressure and reprisals."

The sponsor notes that this recommendation comes in the wake of "severe and unprecedented attacks" (emphasis added) on the judiciary from "current events and particular judicial decisions." The attacks are based on "inaccuracies, misstatements, and misinformation." Descriptions of the alleged attacks are not specified, though they are described as "strident and unjustified." The sponsors note that "the public is often not informed of the facts of a case, its procedural posture, and/or the underlying principles that may influence the decision-making of a judge."

The sponsor emphasizes the ABA's importance in affirming judicial independence and calls for the Association to take a leading role in educating the public and correcting misstatements "during these difficult times." Calls and letters to public officials, op-eds, and calls to reporters are ways in which the alleged misinformation can be addressed.

Many have maintained that criticism of certain decisions or judges is not unfounded or unprecedented. Criticism of the judiciary has existed since the nation's founding, and decisions in recent cases concerning same-sex marriage, abortion rights, and racial preferences are tagged as "activist" by those who espouse a more limited judicial role. These critics contend that their challenge to judicial decision-making is meant to serve as a check on judicial overreaching, not to undermine judicial independence. This serves to create a robust democracy, respectful of the rule of law, and fosters rather than forecloses debate. For example, Supreme Court Justice Clarence Thomas stated 1999: "Open debate of judicial decision-making only strengthens the legitimacy of the judiciary. If our decisions can withstand public scrutiny and reasoned discussion, then the people will only accept them all the more."

Some critics of this resolution are contending that the politicization of the judicial confirmation process and the involvement of special interest groups in waging political attacks on judicial nominees are the real threats to judicial independence, not occasional attacks on certain decisions. It is this politicization that drove a 2002 policy adopted by the ABA House of Delegates concerning judicial vacancies. That policy did not set any time frame for Senate action, but it called for prompt action by the Senate Judiciary Committee for action on nominees, as well as prompt action by the Senate to advise and consent to or to reject nominees. This was the only time the Senate has been singled out by the Association as responsible for politicizing the confirmations process. With a looming U.S. Supreme Court nomination, some have suggested that the ABA should be confronting this increased politicization of the confirmations process and the use of the filibuster, rather than more general attacks on judicial independence.

Voting Rights Act

The Section of Individual Rights & Responsibilities and the Standing Committee on Election Law offer Recommendation 108, calling for the "reauthorization of the Voting Rights Act of 1965 as amended through 1992." The sponsors contend that the Voting Rights Act is the "most effective civil rights law ever enacted," as it ended literacy tests and poll tests, helped to increase the number of minorities elected to office, and has contributed to developing a political community of interest and awareness in minority communities."

Yet, despite these advances, "members of minority groups still face discrimination in exercising their right to vote, as allegations in recent elections made clear. Following an investigation into the 2000 presidential election for example, the U.S. Commission on Civil Rights concluded that voter disenfranchisement was widespread in Florida, falling most harshly on black voters but also affecting thousands of Spanish-speaking voters. Allegations of voter intimidation and harassment directed at minority groups have also marked elections in 2002, 2003, and 2004, in states across the country." As evidence, the sponsors cite a report published by People for the American Way (PFAW) and the NAACP, "The Long Shadow of Jim Crow: Voter Intimidation and Suppression in America Today."

The report's description of the Voting Rights Act as having been "instrumental in developing a political community of interest and awareness in minority communities" may be disputed by some critics. The sponsor may be suggesting that racially gerrymandered districts that concentrate black and/or Hispanic voters develop political communities, but critics will express skepticism on the grounds that gerrymandering often ignores community boundaries and creates artificial communities with widely dispersed areas only united by racial composition.

Critics of the recommendation have suggested that was not covered by the emergency provisions of 1965. Only five counties would be impacted by an extension, none of which were involved in the Florida election recount in 2000. Furthermore, contrary to the description in this recommendation, the Civil Rights Commission ultimately concluded in its report that there was no evidence of intentional voter intimidation, harassment, or systematic disenfranchisement of minority voters in Florida. The report's executive summary stated: "The report does not find that the highest officials of the state conspired to disenfranchise voters. Moreover, even if it was foreseeable that certain actions by officials led to voter disenfranchisement, this alone does not mean that intentional discrimination occurred. Instead, the report concludes that officials ignored the mounting evidence of rising voter registration rates in communities."

Critics also have observed that many of the report's conclusions were denounced by government officials and election-watchers, including two members of the Commission itself, Russell Redenbaugh and Abigail Thernstrom. Their dissent described the findings as "deeply flawed" and inflamed by "partisan passions."

The Justice Department's Civil Rights Division conducted its own investigation into voter disenfranchisement in Florida. In a May 2002 letter to Democratic Senator Pat Leahy of Vermont, then-Senate Judiciary Committee Chairman, Assistant Attorney General Ralph Boyd wrote, "The Civil Rights Division found no credible evidence in our investigations that Floridians were intentionally denied their right to vote during the November 2000 election."

The sponsor describes the preclearance provision of the Act as "requiring the states and counties with documented histories of discriminatory voting practices [to] submit planned election law changes for approval by federal officials." Critics of reauthorizing the Act "as is" question whether the preclearance provision is still necessary. They would urge greater study of the redistricting issue in §2 and would analyze whether the legal standards employed by the Department of Justice in objecting to a redistricting plan are unacceptable.

The 1965 legislation targeted those states where voters were disenfranchised. Today, several jurisdictions covered by the provision, such as Manhattan, the Bronx, and Brooklyn, have not had documented histories of discriminatory voting practices. Additionally, the covered Southern states have long abandoned practices targeted by the provision, such as literacy tests, making the provision unnecessary. Critics would also note that §2 of the Act is permanent, a fact that is misleading in the report.


International Law

The Section of International Law offers Recommendation 110, calling for "the prompt ratification of the United Nations Convention Against Corruption by the United States, and by other members of the United Nations." The United States signed the Convention, but has not yet ratified it.

Federal Shield Law

The ABA Section of Litigation introduces Recommendation 104B, urging Congress "to enact a federal shield law for journalists to protect the public's need for information and to promote the fair administration of justice." The sponsor urges the ABA to support the principles behind H.R. 581, the "Free Flow of Information Act," sponsored by Representatives Mike Pence and Rick Boucher, and its companion bill in the Senate, S-340, introduced by Senator Dick Lugar and sponsored by Senators Lindsey Graham and Christopher Dodd. These bills are largely based on long-standing Department of Justice guidelines. Several states already have similar shields in place.

Homelessness and A Right to Mail

The Commission on Homelessness and Poverty and the Commission on Mental and Physical Disability Law sponsor Recommendation 112, urging "Congress, the U.S. Postal Service, and other appropriate federal entities to ensure the prompt delivery of and adequate customer access to the U.S. mail for people experiencing homelessness."

Prominent Awardees at the Annual Meeting

Judge Abner Mikva will receive the ABA's 2005 Thurgood Marshall Award from the Section of Individual Rights & Responsibilities at a dinner on August 6. The award recognizes his "outstanding commitment to the preservation and expansion of civil rights." According to the ABA's press release, Judge Mikva "has demonstrated consistent leadership in protecting the rights of the disenfranchised and promoting respect for the rule of law." Supreme Court Justice John Paul Stevens will deliver the keynote address at the dinner honoring Judge Mikva.

U.S. Senator and former ABA leader Hillary Rodham Clinton leads the list of women honored by the ABA Commission on Women in the Profession with its Margaret Brent Women Lawyer of Achievement Award. This award, first bestowed in 1991, "honors outstanding women lawyers who have achieved professional excellence in their area of specialty and have actively paved the way to success for others."

Mary Ann McMorrow is also a recipient of the Margaret Brent Women Lawyer of Achievement Award. Justice McMorrow serves as Chief Justice of the Illinois Supreme Court. She was first elected to the bench in 1976 when she won a position on the Cook County Circuit Court. She was first elected to the Illinois Supreme Court in 1992 as a Democrat. In 1997, she wrote the court's majority opinion in Best v. Taylor Machine Works, striking down tort reform. The Court ruled that the Civil Justice Reform Amendments of 1995 enacted by the legislature violated the Illinois Constitution. She described the legislation as encroaching on the powers of the judiciary. Critics derided the decision as judicially activist, and many accuse the decision of opening up Illinois to countless, baseless lawsuits.

Another honorees is Judith L. Lichtman, who is immediate past president and senior advisor to the National Partnership for Women and Families in Washington, D.C., which she led for thirty years. The National Partnership is a "nonprofit, nonpartisan organization that uses public education and advocacy to promote fairness in the workplace, quality health care, and policies that help women and men meet the dual demands of work and family."

In her position as president, Lichtman litigated cases and lobbied for legislation such as the Pregnancy Discrimination Act, the Civil Rights Act of 1991, and the Family and Medical Leave Act. According to the ABA, she created institutions such as the Women's Law and Public Policy Fellowship Program and EMILY's List to "give women lawyers a voice in the profession." The Fellowship Program, based at Georgetown, allows fellows to focus on women's rights issues. EMILY's List, according to its website, "is dedicated to taking back our country from the radical right wing by electing pro-choice Democratic women to federal, state, and local office…Our immediate focus is to win elections to turn back the Bush Republicans and their right-wing agenda."

Lichtman has lobbied against many of the Bush Administration's nominees and policies. In 2001, she spoke out after John Ashcroft's nomination as Attorney General, stating, "President-Elect George W. Bush's nomination of John Ashcroft for Attorney General is an affront to women and people of color who rely on the federal government to promote fairness and equal opportunity. He is an extremist who has consistently opposed measures to promote civil rights and women's rights in this country." Under Lichtman's leadership, the Partnership launched its "Agency Watch" Project to monitor the Administration's policy and rule making activities as well as its judicial nominations.

Other Margaret Brent honorees include Loretta Collins Argrett, former Assistant Attorney General in the Tax Division of the U.S. Department of Justice during the Clinton Administration; Mary Cranston, chair of Pillsbury Winthrop; and Judge Carolyn Dineen King of the U.S. Court of Appeals for the Fifth Circuit.

Scheduled Speakers

ABA Watch decided to take a look at a few of the CLE panels the ABA will be featuring at its annual meeting. A panel offered by the Individual Rights Section on "The 2004 Presidential Election: How Lawyers Made a Difference" appeared particularly interesting. According to its description, "The program will consist of a panel of attorneys who will talk about the voter protection effort during the 2004 general election.


Speakers will describe the strategy behind the voter registration efforts and/or litigation
filed prior to the election in states such as Ohio, Florida, Arizona, Pennsylvania, and Wisconsin, where attorneys worked with community organizations to protect voters' rights. Finally, speakers will discuss possible solutions to the various impediments to voting that potential and registered voters experienced before and during the general election."

According to the Annual Meeting's program book, the following are speakers: Alaina Beverly, Staff Attorney, NAACP Legal Defense Fund, Voting Rights Group; Judy Browne, Advancement Project; Johan Goldman, Washington, DC Lawyer (no affiliation found); Robert Rubin, U.S. Secretary for the Treasury under President Clinton; Sheila Thomas, Lawyers' Committee for Civil Rights (moderator); and Monica Youn, Entertainment Lawyer at Manatt Phillips in New York City.

The Young Lawyers Division will sponsor a panel on "Celebrating the 40th Anniversary of the Voting Rights Act: Moving Forward, Looking Back." The panel description describes, "The year 2005 is the 40th anniversary of the Voting Rights Act, one of the most important and successful civil rights laws in our history. The program will reflect on the history of the Voting Rights Act and address current legal and political issues in voting rights. The program will begin with a video presentation of photographs of the events of 1965 by Charles Moore, legendary civil rights photographer. The panel will be introduced by Robert Grey, President of the American Bar Association, and moderated by Barrett Watson, Chair of the ABA Young Lawyers Division. It will be a lively discussion of current issues of significance in voting rights, including: voting problems in the 2004 election, electronic voting, felon voting rights, minority majority districts and redistricting in general, and the extension of Section 5 of the VRA, scheduled to expire in 2007."

Speakers include: John C. Brittain, Chief Counsel and Senior Deputy Director, Lawyers Committee for Civil Rights Under Law; Kim Cobb, Houston Chronicle; Professor Bryan Fair, University of Alabama School of Law; Robert Grey, ABA President; Commissioner Ray Martinez III, U.S. Election Assistance Commission; Photographer Charles Moore; Dean Kenneth Randall, University of Alabama; Theodore M. Shaw, Director-Counsel and President of the NAACP Legal Defense and Educational Fund, Inc.; John K. Tanner, U.S. Department of Justice, Civil Rights Division; Moderator: and Barrett Watson, Chairman, Young Lawyers Division.


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