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Bar Watch Bulletin February 10, 2007

Young Lawyers Division, Controversial Cases
February 10, 2007

Young Lawyers Division Assembly

 

On Saturday morning, the Young Lawyers Division Assembly (YLDA) met to debate resolution 1YL, which proposes that the House of Delegates adopt a 60% “super-majority” before adopting any main motion as official policy of the American Bar Association. If the YLD adopted the resolution, it would sponsor 1YL as a recommendation to be adopted by the full House of Delegates at the ABA’s annual meeting in August.

 

Richik Sarkar, representing the 18th District in the YLDA, spoke in favor of the recommendation. He noted the history of both the ABA and the YLD taking policy positions, despite the fact that it has been a low priority of members. He suggested that the ABA’s declining market share—from 58% to 37% in the past thirty years—could be attributed to the fact that most of its controversial policies have been adopted in that time span. Sarkar stated that ABA studies confirmed that the Association’s positions on social and political issues have had a negative impact on its membership.

 

Sarkar contended that by requiring a 60% “super-majority,” the ABA would build a greater consensus and add more legitimacy to these positions. He suggested that the ABA should primarily seek to educate its members and the public about public policy, only advocating when necessary. Sarkar emphasized that this proposal was not about politics, noting that he would have supported many of the controversial positions on abortion, welfare, and health care that the ABA has adopted.

 

Daniel Van Horn, the Assembly Speaker, also spoke in favor of the resolution. He argued that the resolution was about how to balance the advocacy and membership roles of the ABA. Van Horn contended that the House of Delegates was not representative of the body as a whole in its political perspectives.

 

An assembly member from Pennsylvania rose in opposition to the proposal. She contended that democracy in America means majority rule, and the ABA should not be held to a higher standard than the federal government. She maintained that no empirical evidence existed that linked the ABA’s adoption of controversial policy positions with its membership decline. She also maintained that few policy positions would have changed if a super-majority, rather than simple majority, was the standard employed. The ABA had a duty to “protect people who need to be protected,” and its positions on the ERA, discrimination, quality health care, stem cell research, and prayer in public schools would ensure this.

 

Other opponents suggested the recommendation stemmed from disagreement with the ABA’s position on abortion. Vermont delegate Ed Adrian declared that the recommendation is rooted in a “woman’s right to choose.” The ABA needs to stand for choice. He refuted any suggestion that the ABA’s membership was declining because of its policy positions. Delegate Matt Nelson suggested that any attempt to deny that abortion was the recommendation’s impetus was “hogwash.” He stated that ABA membership numbers were increasing. He also praised the efforts of the ABA’s membership team. He maintained that the ABA’s membership division does not consider the ABA’s policy positions as a reason why lawyers would leave the ABA.

 

Delegate Dan Schwartz, who described himself as a pro-choice Democrat, contended that this recommendation was not about abortion. It was about achieving consensus within the organization and the need to speak with one voice on the most controversial subjects in legal and public policy. The resolution would not stifle activism. Wisconsin Delegate Joseph Cardamone noted that his state bar required a supermajority, which made common sense because of the bar’s diversity. A 60% majority is not “irresponsible or unreasonable.”

 

A vote was taken to discuss whether to extend debate. The motion failed. A final opponent, who did not identify herself, offered the last critique of the recommendation. She stated that it was “shocking” that anyone could believe that ABA membership was falling because of its policy positions.

 

A vote was then taken. By a narrow margin, the resolution failed.



Spirit of Excellence Awards



The ABA bestowed its “Spirit of Excellence Awards” at a luncheon on Saturday. The award was established “to celebrate the efforts and accomplishments of lawyers who work to promote a more racially and ethnically diverse legal profession.”

 

The honorees included:

  • Paulette Brown, the past president of the National Bar Association and a member of the ABA Commission on Women in the Profession.
  • William T. Coleman, who served as Secretary of Transportation under President Gerald Ford. He was one of the authors of a key legal brief in Brown vs. Board of Education. In his remarks, he remarked that “America is slowly and finally recognizing that all of us, except Native Americans, are immigrants.”
  • Former Chief Judge Joseph Hatchett of the U.S. Court of Appeals, 11th Circuit. He was first appointed to the federal bench by President Carter. Judge Hatchett stated that America had made a lot of progress in civil rights in the past fifty years.
    New Mexico Cabinet Secretary Arturo Jaramillo. Secretary Jaramillo noted that his family had been in New Mexico since the 1500s. He also stated that he was a beneficiary of programs in the 1970s that enabled him to gain acceptance into a law school, despite his low test scores.
  • Paul W. Lee, the former president of the National Asian Pacific American Bar Association. Lee stated that “he found meaning in life” protesting the Vietnam War in college, leading to his decision to attend law school. He stated, “We need more successful lawyers of color to serve as advocates for the community.”
  • Justice William Richardson, who served as chief justice of the Hawaii Supreme Court and the founder of the University of Hawaii Law School.
  • Thomas Mars, senior vice president and general counsel of Wal-Mart Stores. He spoke of Wal-Mart’s embrace of diversity, leading to a general counsel’s office with 1/3 of its attorneys members of minority groups.

 

Panel on Controversial Cases



Several lawyers who ruled in newsworthy legal cases participate in a panel called “Eye of the Storm: Deciding Controversial Cases.”

 

U.S. District Court Judge John E. Jones, a George W. Bush appointee to the Middle District of Pennsylvania, discussed the aftermath of his ruling in Kitzmiller vs. Dover, the Pennsylvania case concerning the teaching of intelligent design in schools. Judge Jones ruled against the school district. He spoke about how the television pundits—such as Bill O’Reilly and Andrew Napolitano of Fox News—criticized his ruling in the case as an example of judicial activism. He mentioned Phyllis Schlafly’s column accusing him of “stabb[ing] the evangelicals who got him onto the federal bench right in the back.” However, he emphasized that he was never under political pressure from the Administration to come to a particular ruling. Judge Jones emphasized that his duty was to the Constitution and not to special interest groups. However, the criticism ultimately “emboldened him,” provoking his participation on this panel.



Judge Rosemary Barkett, of the U.S. Court of Appeals, 11th Circuit, stated that she never regarded any of her decisions as controversial as she drafted those opinions. However, she admitted many of her decisions on the death penalty, abortion, election law, and gay rights have attracted attention. She singled out a particular opinion she wrote on how one could bring a lawsuit under Title IX to charge a school with sexual harassment. She did not think the decision was controversial, although it provoked her title as one of Readers Digest’s “Ten Worst Judges in America.” (She remarked she did not know anyone who read the publication.) She was concerned that judges were used as political fowls to advance a political stand. These attacks only threatened judicial independence.

 

Judge James D. Whittemore, a Clinton appointee to the U.S. District Court for the Middle District of Florida, admitted he was reluctant to appear on the panel discussing his decisions in the Terri Schiavo case. He issued a ruling in the case denying a temporary restraining order to replace the Schiavo’s feeding tube, provoking many protests. He declined to discuss many details of the case, although he remarked, “We try to follow the law. We do the best we can.”

 

The panelists all agreed that the media could do a better job informing the public about the details of these cases. They also thought lawyers could do a better job discussing the importance of judicial independence.