The Federalist Society

Bar Watch Bulletin August 5, 2006

Greco Press Conference, Diversity and Law Firms, Physician-Assisted Suicide

August 5, 2006

At a morning press conference, ABA President Michael Greco discussed three policies that the House of Delegates will consider, and that he strongly supports.

He first spoke out against legislation proposed by Senator Grassley and Congressman Sensenbrenner that would create an inspector general for the federal judiciary that would investigate allegations of administrative and other misdoings. He warned that if Congress adopted this legislation, it would "threaten to undermine the constitutional doctrine of the separation of powers."

Greco stated that Congress already had broad constitutional powers over the judiciary, including confirming federal judges, funding the courts, and impeachment. Greco declared that Congress should not have the power to investigate the federal judiciary. While Greco did not know how aggressively this proposal was being considered, he maintained, " Anything that appears to affect the balance of powers between the three branches is an issue the ABA takes seriously."

The ABA House of Delegates will consider a recommendation that opposes this legislation on Monday.

Greco also addressed the proposed ABA policy on presidential signing statements. Greco maintained that he "took care" to ensure that his appointed ABA Task Force on Presidential Signing Statements was bipartisan. He stressed that the Commission's findings were unanimous, and he noted that the resulting attention devoted to the findings was "extraordinary." Senators had even commended the ABA for taking on this issue.

According to Greco, the President only has two choices when signing a bill: he must sign the bill in total or veto the bill. By issuing signing statements, the president is choosing a third, unconstitutional alternative that "handcuffs" Congress.

Greco maintained that the most important recommendation made by the task force is the provision urging Congress to enact legislation to create the right of judicial review so a member of Congress can invoke the Court.

In response to a question, Greco contended that signing statements were not inherently "evil" if they were used as by the other 42 presidents over the past 200 years. He had no idea that this Administration had taken this practice to a new level. The "frequency" and "the use" of signing statements is troubling.

With respect to the critics of the task force proposal, Greco stated that all critiques had one thing in common: they did not address the fundamental issue that the Constitution does not provide this kind of latitude. It is the role of the judiciary, not the executive, to declare an act of Congress unconstitutional. The practice of signing statements, as used, was "cancerous."

Greco also endorsed a policy to create a "civil Gideon." The policy, if adopted by the House of Delegates, would be the first time the ABA would endorse offering a right to free legal representation for poor Americans "who face legal threats to their housing, health, or family." Greco claimed over 50 million Americans would qualify for this kind of assistance. When asked how we could afford to offer this assistance, Greco responded, "Can we afford not to pay for civil legal assistance?" He admitted "the cost is a factor," but "it is a matter of priorities."

The Task Force on Access to Civil Justice was looking into the cost of doing nothing.

Diversity and Law Firms
Greco also discussed a new ABA report that examined why women of color were leaving law firms. The ABA Commission on Women in the Profession report, entitled "Visible Invisibility: Women of Color in Law Firms," concluded that "women of color experience unique disadvantages based on both race and gender. White women experience such events based on gender alone, men of color experience such events based on race alone, and white men have virtually no first-hand or personal experience with discrimination." The report notes that the chief complaints of minority women attorneys include "a lack of networking and access to significant billing hours, being skipped over for client development opportunities and desirable opportunities, and being subjected to demeaning comments or harassment, and unfair performance reviews." When Greco was asked if he felt guilt as a white male law firm partner, Greco replied, "I am what I am, but we can be what we want to be." He urged that white male partners be educated to support and promote diversity.

Physician-Assisted Suicide
Only one of seven panelists unequivocally opposed physician-assisted suicide on a Friday afternoon panel. Discussing "Gonzales vs. Oregon: Lessons for States, the Terminally Ill, and Schiavo Patients," the panelists overwhelmingly supported more laws, including the state of Oregon's.

The lone dissenter was Dr. Brian Issell, an oncologist at the University of Hawaii, who supported pain management options. He feared that offering suicide pills would offer an easy way out for doctors. He did urge for health care reform, as palliative care was not at the level it needed to be. Doctors often were forced to concentrate their efforts on procedures and reimbursements, not on explaining options to patients.

The other panelists, in varying degree, supported what one described as "peaceful death with physician assistance." Hawaiian activist Ah Quon McElrath expressed her astonishment: "What objections could anyone have?" to death with dignity options. She noted the Catholic Church defeated the first attempt to institute an Oregon-like law in Hawaii. Kathryn Tucker, representing Compassionate Choices and the state of Oregon in Gonzales vs. Oregon, stated that there was no slippery slope. She contended that laws like Oregon's encouraged enrollment in palliative care courses, and it did not encourage suicide. Her Compassionate Choices colleague Barbara Coombs Lee asserted that support in Oregon for "personal autonomy" and control over the end of life was high. She said legislation would be more likely to be successful if it were "not about people who want to die" but "relief of psychic suffering." William Colby, legal counsel for Nancy Cruzan, admitted he was personally opposed to "physician assisted suicide," although he favors greater discussion. He thought that should be debated through the democratic process.

Professor Kenneth Kipnis of the Department of Philosophy at the University of Hawaii at Manoa drew parallels between "people in hospitals who are suffering the same way" as people on the 90th Floor of the World Trade Center on September 11. Coombs Lee interjected that physician-assisted "peaceful death" actually promoted life, as it would prevent the ill from taking the desperate measure of committing suicide before they fully declined. They would be able to let a doctor perform the act for them, instead.

Enemy Combatants The ABA Annual Meetings opened with a panel on "Guantanamo Trials End for Now: The Future of Military Commissions."

Neal Sonnett, who chaired the ABA task force on military commissions, declared "The Supreme Court has given us another chance." The term "enemy combatants" appears nowhere. They made it up...It has no authority. It has no meaning."

He noted that he has long been troubled by the Commissions, particularly after visiting Guantanamo in 2004. He stated, "The rules for these hearings are made up on the fly." The government did not permit adequate access to their classified documents and evidence to defendants, and used "incomprehensible" admission of evidence obtained by torture. He noted that civil trials have tried other defendants, including Timothy McVeigh. Commissions could be similarly effective.


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