The Federalist Society

Bar Watch Bulletin August 9, 2005

House of Delegates, Grecco President Conference

August 9, 2005

President Greco held a news conference Monday morning to discuss his plans for the coming year for the ABA. His reiterated several times over that he will primarily focus on the fundamental need for an independent judiciary. "An independent judiciary is fundamental to a free society. It is the least understood, most vulnerable, and the most important." He identified threats of retaliation by the public and members of Congress and state legislatures, decreased budgets, and the lack of civic education throughout our country as the main culprits in this matter. "If we can't protect our courts, our courts cannot protect us," he said. To that end, another issue he will focus on in the 2005- 06 term is increased education of the public on civic matters, specifically the principle of separation of powers. He has already appointed a Commission on Civic Education and the Separation of Powers, with Supreme Court Justice Sandra Day O'Connor and former U.S. Sen. Bill Bradley of New Jersey serving as honorary co-chairs, to address it. He stated that "44% of American polled could not identify what the role of judges was," but sounded optimistic after declaring that "82% of Americans who understand this principal do value it." He believes that increased education focused on the American system of checks and balances within the government would greatly "enhance public support for the judiciary whose very existence depends on separation of powers itself."


Improved access to the legal justice system for poor Americans is another issue that Mr. Greco will focus upon. The poor "need a defined right to counsel," Greco stated. He is looking to appoint a task force to identify problems within the United Stated legal system and address means to correct them. At the very least, Greco believes, lawyers need to "regain their rightful place as leaders in the community." He thinks a "renaissance of ideals" must occur in the legal community and more lawyers need to focus on pro bono work and address the poor's need to legal assistance in family, shelter and health issues.


"AN INDEPENDENT JUDICIARY IS FUNDAMENTAL TO A FREE SOCIETY"

A recommendation (10A) made by a group of over fifty legal groups, including the ABA Section of Litigation and a number of state bar associations, affirmed the belief that "a fair, impartial, and independent judiciary is fundamental to a free society and calls on all Americans, including elected officials, to support and defend our judiciary and its role in maintaining the fundamental liberties under the Constitution of the United States." The recommendation was approved.


THE ABA APPROVES A RECOMMENDATION TO IMPROVE THE OUTCOMES OF ABUSED AND NEGLECTED CHILDREN

The ABA approved a recommendation (10B) that "urges Congress, the states and territories to enact and/or adopt policies consistent with the recommendations of the national bipartisan Pew Commission on Children in Foster Care for improving the outcomes for abused and neglected children under dependency court jurisdiction." A supporter of the recommendation stated, "We need to ensure that lawyers that represent these children do not struggle mightily by being overburdened with too many cases."


THE ABA URGES CONGRESS AND THE PRESIDENT TO PROTECT OUR MARITIME RESOURCES

Another recommendation (101A) that was approved with little opposition was one that encouraged "Congress and the President to take specific legislative, regulatory and other actions necessary to improve the structure of our country's domestic management and regulation of its maritime resources in order to better protect the integrity of its maritime resources and to ensure economically sustainable use and development of its marine resources."


THE "JUDITH MILLER" RECOMMENDATION

The ABA approved a 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 incorporated by specific principles."


INSURANCE COVERAGE IN THE EVENT OF SUBSTANCE ABUSE RELATED LOSSES

The Standing Committee on Substance Abuse put a recommendation (105) before the House urging that "all states, territorial and local governments repeal laws and discontinue practices that permit insurers to deny coverage in accident and sickness insurance policies for alcohol or drug related injuries or losses and supports the 2001 Amendment by the National Association of Insurance Commissioners." The recommendation was approved.


THE ABA LOOKS TO PROVIDE MAIL SERVICE TO PEOPLE "EXPERIENCING HOMELESSNESS."

The ABA's Commission on Homelessness and Poverty put forth a recommendation (112) to the House of Delegates that "urges 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." The recommendation was approved by the delegates.


THE ABA ON THE VOTING RIGHTS ACT OF 1965

The ABA approved a recommendation (108) supporting "the reauthorization of the Voting Rights Act of 1965 as amended through 1992."


1-800-IMN-JAIL

The Criminal Justice Section of the ABA sponsored a recommendation (115B) to the House of Delegates that would urge "federal, state, territorial and local governments to afford prison and jail inmates every reasonable opportunity to maintain telephonic communication with the free community and to offer telephonic services in the correctional setting with an appropriate range of options at the lowest rates." The action was approved.


CONSTITUTIONAL AND BYLAWS AMENDMENTS

The ABA addressed a number of issues pertaining to internal governance at the House of Delegates meetings. Regarding the Constitution and Bylaws and the governing structure of the House of Delegates, the attendees voted to eliminate the Committee of Delegates-at Large and UNANIMOUSLY passed a measure to eliminate the sunset provision for the women and minority at-large seats on the Nominating Committee. However, an action to limit the length of service of all delegates to two consecutive full three-year terms failed. An opponent of the initial recommendation said that experienced leaders "enhances the clout of their associations and serve as mentors."


ATTORNEY GENERAL ALBERTO R. GONZALES OPTIMISTIC OF ROBERTS' CONFIRMATION

Attorney General Alberto Gonzales gave an address Monday to the House of Delegates wherein he stated "I look forward to a good and fair examination of John Roberts' qualifications and his ultimate confirmation for a seat on the court." Judge Roberts, Gonzales believes, "has the integrity, judicial temperance and is superbly qualified" to serve on the U.S. Supreme Court. On the subject of documentation, specifically requests made by Democrats, he stated "I'm cautiously optimistic that Senators will have ample information." In making reference to the ABA itself on the subject of Roberts, Gonzales stated "You've got someone who's already been evaluated by the ABA."

Furthermore, Gonzales reflected on three important issues facing President Bush's administration, including reauthorization of the 1965 Voting Rights Act (Saturday marked its 40th Anniversary). It is scheduled to expire in 2007. "President Bush wants to ensure that every qualified voter in America has the right to vote and to make that vote count," he said.

Another issue is the restoration of Federal Sentencing Guidelines, the genesis of which was a response to the high crime rates of the 1960's. "Guidelines," Gonzales stated, "ensure fairness in sentencing" and "increase the safety of law-abiding Americans." Reauthorization of important provisions of the 2001 Patriot Act is also important to the administration. He stated, "We are subject to constant oversight by judges and Congress." It is through the Patriot Act that we are able to fight terrorism. To quell criticism of its use by the DOJ, the Attorney General declared "The threat has not expired, and the department has acted responsibly."


IS THE INDEPENDENCE OF THE JUDICIARY AT RISK?

In a special session held Tuesday morning at the House of Delegates, a distinguished panel comprised of U.S. Supreme Court Justice Stephen Breyer, Senator Lindsay Graham and Former U.S. Solicitor General Theodore Olson discussed the issue of judicial independence, with Professor Charles Ogletree of Harvard Law School moderating.

Professor Ogletree opened the discussion and stated that "Things have never been worse among the three branches of government." He proceeded by asking the panelists, "What is the biggest threat to the Supreme Court?" Justice Breyer responded by saying that there is a natural tension between the branches. "Not all of our decisions are right. A lot of the decisions create a lot of strong opinions," he added. The biggest problem, he felt, was the lack of support for the institution itself, specifically referring to budgeting and pay scale-backs.

Senator Graham added, "If you have a lifetime seat, it is the quality that is at stake." He felt that it is not about whether a liberal, moderate or conservative is on the court; rather it is about whether the best person for the job is on it.

Professor Ogletree, going back to Justice Breyer's comments, again raised the issue of the lack of meaningful raises for the judiciary, to which Senator Graham replied, "The pay system for judges cannot be like the one for politicians. If you want to get the best and the brightest, pay does matter."

Justice Breyer, again addressing the issue of how to make a totally independent judiciary, suggested that lifetime terms, increased pay and increased funding will help ameliorate the situation.

Professor Ogletree brought up the subject of the use of foreign law in American jurisprudence, whereupon Justice Breyer said "We are not bound by any foreign law." He felt that since the United States is not alone in having a constitutional government, "why not learn something" from those that do?" He also felt that the consideration of laws from fledgling constitutional governments by the United States Supreme Court would boost their confidence.

After Professor Ogletree brought up the intensity of the battle for the Supreme Court, Senator Graham responded, "This is politics at its rawest level."

Finally, the Professor asked the panelists to suggest ways to protect the court system. Justice Breyer replied "Tell people what the rule of law is. People worship the Constitution but they don't know what it says." Senator Graham responded, "Voting is not a democracy. Democracy is the rule of law supported by public participation."

Mr. Olson concluded: "What are we telling judges and the public when we pay them what some first-year lawyers can make?"


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