The Federalist Society

Bar Watch Bulletin July 2006

Preview of Annual Meeting

July 3, 2006

The American Bar Association Midyear Meetings take place from Thursday, August 3 until Tuesday, August 8. Once again, ABA WATCH will be reporting live from the meetings.

Today, we preview upcoming resolutions and other highlights from the meetings.

Presidential Signing Statements:

On June 5, ABA President Michael Greco announced the establishment of the "Task Force on Presidential Signing Statements and the Separation of Powers Doctrine." The ABA's Board of Governors unanimously voted to form the task force after several articles were published in the Boston Globe, which reported that President Bush has issued over 750 presidential signing statements while in office.

The findings of the task force were released on July 24.

Law School Diversity: Proposed recommendation 106B states that the House of Delegates "concurs in the action of the Council of the Section of Legal Education and Admissions to the Bar in adopting revisions to Standards 210-212, concerning equal opportunity and diversity, of the Standards for Approval of Law Schools and the Interpretations thereto dated August 2006."

Last February, these proposals attracted a great deal of scrutiny, as they appeared to mandate consideration of diversity in law school admissions and hiring. Among the proposed changes is proposed revised "Standard 211," the "Equal Opportunity and Diversity Effort." The Council proposed the Standard state: "A law school shall demonstrate by concrete action a commitment to providing full opportunities for the study of law and entry into the profession by members of underrepresented groups, particularly racial and ethnic minorities, and a commitment to having a student body that is diverse with respect to gender, race and ethnicity…[And law schools] shall demonstrate by concrete action a commitment to having a faculty and staff that are diverse with respect to gender, race and ethnicity." Interpretation 211-1 stated that the "requirement of a constitutional provision or statute that purports to prohibit consideration of gender, race, ethnicity or national origin in admissions or employment decisions is not a justification for a school's non-compliance with Standard 211. A law school that is subject to such constitutional or statutory provisions would have to demonstrate the commitment required by Standard 211 by means other than those prohibited by the applicable constitutional or statutory provisions."

The Council maintains that the revisions of Standard 211 do not require law schools to consider race or ethnicity in their admissions decisions; rather, they may use it. They are not requiring schools to fill quotas of unrepresented groups, but schools simply must show a commitment to having a diverse student body, faculty, and staff. Such a commitment would not violate state or federal laws, which prohibit the consideration of gender, race, ethnicity, or national origin in admissions or employment. Schools do not need to use race-based admissions or hiring policies to reach this commitment level; rather, they may choose from a diversity of options. Schools may partake in admissions recruiting at colleges with a high minority rate, or they may use "pipeline" efforts to encourage minority groups, at a young age, to enter the legal profession. Schools may also consider factors other than the LSATs and undergraduate GPA, such as student leadership, workplace achievement, and graduate work. Schools could use summer programs to assist minority groups to be better prepared for admissions and the legal curriculum. The ABA has referred to these efforts as a mere sampling of what law schools may do to meet Standard 211.

The Standard's critics also contend that the ABA is forcing law schools to not only break their own admissions policies, but also state and federal laws. They argue that the ABA's racial diversity standard is not an option and is being forced upon them. Grutter stated that a law school may use race and ethnicity in the admissions process to promote its educational goal of diversity; however, the ABA states "law school[s] shall take concrete actions to enroll a diverse student body" (Interpretation 211-2). These critics allege that the ABA has misrepresented the Court's decision in Grutter. In addition, the ABA's requirements are results oriented and thus, the opponents contend, law schools have no other choice but to use race based admissions.

The Council made one concession to some of its critics. At its June meeting, the Council reviewed Standard 211 and its Interpretations to determine whether changes were needed to clarify the intent of the Standard. The Council concluded that it needed to add a clarifying sentence to the end of Interpretation 211-1. This statement clarified: "A law school that is subject to such constitutional or statutory provisions would have to demonstrate the commitment required by Standard 211 by means other than those prohibited by the applicable constitutional or statutory provisions."

State Tort Law Preemption: Recommendation 103, sponsored by the Ohio State Bar Association, resolves that "absent Congressional authorization, the ABA opposes the promulgation by federal agencies of rules or regulations that pre-empt state tort and consumer protection laws in instances where the state laws hold parties to a higher or stricter standard than that being promulgated by a federal agency."

This recommendation has generated considerable opposition from groups including the International Association of Defense Counsel that "oppose[s] the resolution because it appears fundamentally unconstitutional to forbid a federal regulation from preempting a conflicting state law regardless of the circumstances. Resolution 103 would turn the Supremacy Clause and centuries of common law on its head."

The Tort Trial and Insurance Practice Section originally sponsored the recommendation, although it withdrew its sponsorship.

Capital Punishment: The Section of Individual Rights and Responsibilities, the Criminal Justice Section, the Commission on Mental and Physical Disability Law, the ABA Death Penalty Moratorium Implementation Project, the ABA Death Penalty Representation Project, and the Beverly Hills Bar Association sponsor Recommendation 122A. The sponsors urge that each jurisdiction that imposes the death penalty should not permit defendants to be executed or sentenced to death if at the time of the offence "they had significant limitations in both their intellectual functioning and adaptive behavior, as expressed in conceptual, social, and practical adaptive skills, resulting from mental retardation, dementia, or a traumatic brain injury." Furthermore, defendants should not be executed if they had a severe mental disorder or disability that impairs their ability "to appreciate the nature, consequences, or wrongfulness of their conduct; to exercise rational judgment in relation to conduct; or to conform their conduct to the requirements of the law." The proposal also outlines conditions in which the death penalty may be overturned if an inmate's "mental disorder or disability significantly impairs his or her capacity to make a rational decision regarding whether to pursue post-conviction proceedings."

The Section of Individual Rights and Responsibilities sponsors the ABA's "Death Penalty Moratorium Implementation Project" as the "next step" in working to obtain a nationwide moratorium on executions. The Project states that administration of the death penalty is often "a haphazard maze of unfair practices with no internal consistency" and urges a moratorium to examine the "evidence showing that race, geography, wealth, and even personal politics" play a role in the process. The ABA, however, does not take a position on the death penalty per se.

Gender Identity Discrimination: The Section of Individual Rights and Responsibilities, the Bar Association of San Francisco, and the Beverly Hills Bar Association urge "federal, state, local, and territorial governments to enact legislation prohibiting discrimination on the basis of actual or perceived gender identity or expression in employment, housing, and public accommodations."

The accompanying report declares that "people who have, or are perceived as having, a non-traditional gender identity or gender expression face discrimination in all facets of life." Thus, the sponsors recommend laws and policies to prohibit this discrimination and ensure that decisions made about employment, housing, and public accommodations are based on "bona fide qualifications rather that stereotypes or prejudices." For example, the sponsors would endorse laws that prohibit men from being harassed because they look or act "too feminine." Passing these kinds of laws "sends a strong message to the community regarding the dignity of transsexual and transgender people." Additionally, "legislating nondiscrimination on the basis of gender identity and expression protects not only transgender people, but all individuals from being penalized for failure to conform with stereotypes linked to gender."

Speakers at the ABA Meeting

  • Supreme Court Associate Justice Anthony Kennedy
  • Former Solicitors General Drew E. Days III and Kenneth Starr
  • Former Maryland Lt. Gov. Kathleen Kennedy Townsend
  • Elizabeth Rindskopf Parker, advisor to the "Domestic Surveillance" Task Force
  • John Yoo, professor of law at the University of California at Berkeley School of Law and former deputy assistant attorney general in the U.S. Department of Justice
  • Neal Sonnett, chair of ABA "Domestic Surveillance" Task Force and ABA "Presidential Signing Statements and the Separation of Powers Doctrine" Task Force
  • Catherine Crier, Court TV anchor and former Texas judge.


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