The Federalist Society

Barwatch Bulletin -- August 13, 2007

August 13, 2007

August 17, 2007

ABA Medal

United States Supreme Court Justice Anthony Kennedy was awarded the ABA's highest honor, its ABA Medal, at a ceremony during the House of Delegates assembly on Monday.

Karen Mathis, outgoing ABA president, introduced Justice Kennedy, proclaiming, "We are recognizing an individual of the highest honor. He represents the best in our profession." She listed his four great contributions as promoting civility in the legal profession, urging increased civic education, advocating sentencing reform, and promoting the rule of law.

Justice Kennedy accepted the award "with profound admiration" for the Association and with "deep gratitude." He spoke of the need to advance the rule of law, which is not beyond the mission of the Association because of the interdependence of the world.

Kennedy said lawyers "must never cease asking, 'Why am I doing this? What inner voice is telling me to decide the case this way? Why should one principle be rejected over another?'" This consideration "is not indecision, it is fidelity to your oath."

Justice Kennedy declared, "The American lawyer has an honored place in the history of human progress." Yet the "law is seen not as a guardian but a predator" in many countries. Many individuals around the world live outside the legal system, with no birth certificate or legal status, and are forced to operate inside the shadow sector to support their families. Justice Kennedy warned, "In the Third World, there are not enough lawyers, paralegals, or college-educated people to make such a system work. The substance of the law in these countries has to change." He urged the House of Delegates to find narrative stories to tell young people. He used examples of young girls sold by their families, the poor in Bangladesh who are incarcerated because they can't pay small fines, and rape victims who can't afford investigations. These need to become causes for young people.

"The law need not be a barrier to progress," cautioned Justice Kennedy. "It will be an instrument of opportunity." Freedom is not secure unless lawyers get involved. If lawyers don't continue the ABA's work of advancing the rule of law around the world, the law will "be reviled and not revered and freedom will be in doubt. You need to be lawyers for America." He concluded by declaring, "There is hurt to assuage. There is injustice to be confronted. The work of freedom has just begun."

After his remarks, Justice Kennedy received baseballs signed by both Hank Aaron and Barry Bonds.

ABA House of Delegates - Day One

State Secrets Privilege

The Section of Individual Rights and Responsibilities sponsored Recommendation 116A urging "whenever possible, federal civil cases are not dismissed based solely on the state secrets privilege." According to the sponsor, "It would bring a level of consistency" to the courts. Additionally, this Recommendation "protects the governments' interests" by ensuring protection of state secrets. Furthermore, it does not require "the disclosure of privileged information to anyone." Supporter Larry Fox, citing the Reynolds Supreme Court case from the 1950s, said that this example "shows the evil we are addressing" and that at any time the government "can overreach." Fox urged the delegates to "have confidence in our judges" to protect the American people from the overreaching of the government. Neal Sonnett also spoke in favor of the Recommendation and addressed the issue of judicial independence. Sonnett maintained that the Recommendation "increases" the flexibility and the independence of the judiciary. There were no speakers in opposition to the resolution, and it was adopted by the House.

Treatment of Detainees

Recommendation 10B, which "urges Congress to override the President's Executive Order of July 20, 2007, which alters the U.S. government's international obligations under the Geneva Conventions of August 12, 1949, regarding the treatment and interrogation of detainees under its authority or control, and to reaffirm those obligations," was sponsored by the Association of the Bar of the City of New York. Proponents of the Recommendation argued that this Recommendation is essential to comply with the Geneva Conventions and that no detainees should be subject to torture. Furthermore, they alleged that U.S. government agents have been involved in "cruel" and demeaning actions towards prisoners.

The Executive Order allows the CIA to use certain interrogation techniques that, according to supporters, would qualify as torture. These techniques faced "widespread international disapproval." The use of abusive techniques has weakened the U.S.'s position as a moral authority in the world. One proponent maintained, "The standards for the military and for the CIA should be consistent." James Silkenat, candidate for the ABA presidency, maintained, "We cannot put our own spin or our own interpretation" on the Geneva Conventions. Kathryn Madigan charged that after 9/11, the administration has embarked on a campaign of black sites and the use of cruel interrogation techniques. The ABA cannot condone "the continued violation of international law." Recommendation 10B passed by a wide majority.

Other Recommendations

Recommendation 10A, which urged law firms to discontinue age-based law firm retirement policies that did not account for performance, had a number of speakers for and against the proposal. Supporters maintained that the Recommendation would help to prevent age discrimination. Opponents argued that it is not the place of the ABA to dictate the policies of private law firms. Though a number of delegates voted against the Recommendation, the House of Delegates Chair Laurel Bellows declared that 10A passed after a voice vote.

The House rejected Recommendation 11-1, which sought to amend the ABA Constitution to include the following language: "to defend the right to life of all innocent human beings, including those conceived but not yet born." Edward Jacobs argued that the ABA needs "to reverse its stand" in order to protect the unborn, a group of human beings that "do not have the same liberty and justice" that the rest of Americans do. Opponents to the amendment claimed it was inconsistent with the U.S. Constitution. The House voted to postpone consideration of the motion indefinitely.

Recommendation 103A, sponsored by the Section of Legal Education and Admissions, prescribed guidance for law schools' pro bono programs and activities. The Recommendation had been revised in order to "clarify" the guidelines for law schools to ensure that law schools provide ample opportunities for law-related pro bono activities. The Recommendation was also revised to add the words "law-related" to the types of programs included, which addressed some critics' concerns. The Recommendation was adopted with no opposition.

Recommendation 104A, sponsored by The Commission on Youth at Risk, encouraged "bar associations, judges and attorneys to lead and promote efforts to create comprehensive support and services for youth who 'age out' of foster care ('transitioning youth') and other former foster youth until at least age twenty-one, and urges amendment of applicable law, and court and child welfare policies." The House adopted the measure.

The Commission on Youth at Risk also sponsored Recommendation 104B, which "encourages measures to promote the permanent lesbian, gay, bisexual, transgender and questioning (LGBTQ) youth in the foster care system in LGBTQ-friendly homes and that protect LGBTQ youth in the homeless youth and foster care systems from discrimination and violence." Supporters of the resolution called it "not complicated" and "not controversial." They contended that the abuse these youth face is "egregious, and must be stopped." They advocated adoption of the Recommendation to stand up for those who cannot stand up for themselves. Recommendation 104B was adopted by a unanimous vote.

The Commission on Youth at Risk sponsored a third proposal, Recommendation 104C, which "encourages jurisdictions to pass laws that require the provision of evidence-based pre-court diversion and early intervention services for youth who are alleged to have committed status offenses, such as truancy, ungovernability or running away and supports the use of in-home or community-based services as an alternative to secure detention." The recommendation was adopted by a unanimous vote.

Recommendation 107, sponsored by the Commission on Homelessness and Poverty, urged "Congress to amend Subtitle VII-B of the McKinney-Vento Homeless Assistance Act to clarify that the Act applies to all children and youth in foster care and to significantly increase funding to support the school stability, enrollment, attendance, and success of all eligible children and youth." The Recommendation was adopted by the House.

Recommendation 108, sponsored by the Commission on Mental and Physical Disability Law, "urges those in the legal profession to make their websites accessible to individuals with visual, hearing, manual and other disabilities and to make legal entities aware of the problems associated with inaccessible websites." The resolution had been slightly revised to address websites "provided by," rather than "intended for" those in the legal profession. Scott LaBarre of Colorado demonstrated a program that can read text on a website and called the Recommendation "a matter of awareness." Recommendation 108 was adopted.

The Commission on Domestic Violence sponsored Recommendation 109, which would adopt "the black letter Standards of Practice for Lawyers Representing Victims of Domestic Violence, Sexual Assault and Stalking in Civil Protection Order Cases, dated August 2007." The House adopted Recommendation 109 unanimously.

Recommendation 110A, which "urges governments, businesses, nongovernmental organizations and other organizations to consider and integrate Rule of Law initiatives with global environmental issues," was the first of five resolutions sponsored by the Task Force on International Rule of Law Symposia. Howard Kenison noted a dramatic increase in global, environmental concerns. He cited reports that correlated human activity with global warming. Passage of this recommendation will permit the ABA "to work with rule of law initiatives" with an environmental focus around the world. There were no speakers in opposition. The House adopted the Recommendation.

The Task Force on International Rule of Law Symposia sponsored Recommendation 110B, which "encourages corporations, lawyers, law firms and other professionals to promote corporate citizenship by supporting: compliant and ethical corporate behavior globally; global pro bono services; promotion of the rule of law; encouraging governments to pursue policies that support corporate citizenship and the rule of law; and sharing best practices in corporate citizenship." Supporters of the Recommendation argued that the ABA is in an excellent position to support corporate citizenship efforts around the world. Laura Stein, speaking in support of the Recommendation, cited a survey of general counsels that highlighted the importance of corporate citizenship. Stein added that "these are critical, critical measures." The Recommendation was adopted.

Recommendation 110C urged "Congress to pass legislation that strengthens protection and assistance for victims of trafficking in persons... and encourages bar associations to engage members of the legal profession in raising awareness of trafficking in persons in their communities and in providing pro bono legal services to victims of trafficking." Supporters of the resolution argued that "much more needs to be done" to stop human trafficking. The resolution was adopted unanimously.

Recommendation 110D encouraged the Association to adopt the Principles on Judicial Independence and Fair and Impartial Courts. Robert Stein, co-chair of the Task Force on International Law Symposia, asserted that these Principles were "a major step forward" for the ABA. There were no speakers in opposition. Recommendation 110D passed unanimously.

The Task Force on International Rule of Law Symposia also sponsored Recommendation 110E, which supports and encourages the United States government to support the following international standards on judicial independence: The United Nations Basic Principles on the Independence of the Judiciary; The International Bar Association Minimum Standards for Judicial Independence; and The Bangalore Principles of Judicial Conduct. Proponents of the resolution called these standards "major standards" which had been applied "throughout the world." They maintained that it was important for the ABA "to go on record" supporting these standards. There were no speakers opposing the Recommendation. Recommendation 110E was adopted by the House of Delegates.

The Section of Litigation sponsored Recommendation 113, which "adopts eleven principles to govern the planning, preparation and training for responses to a major disaster to ensure that the legal system maintains fidelity to the rule of law." The Recommendation was adopted.

Recommendation 114 was sponsored by the Standing Committee on Public Education. This resolution urges "amendment of the No Child Left Behind Act to ensure that all students experience high quality civic learning." Several supporters argued that NCLB focused too much on adapting to test standards, leaving other subjects such as civics, social studies, and art by the wayside. The House of Delegates adopted the Recommendation.

Recommendation 115 "urges all bar associations and other appropriate regulatory bodies to adopt a policy that provides for the waiver or suspension of association dues, CLE requirements and other membership obligations for members who are serving in the U.S. Armed Forces and are performing services in a Combat Zone as designated by an Executive Order of the President of the United States." This Recommendation, sponsored by the Section of Public Contract Law, was adopted unanimously.

Recommendation 116B, also sponsored by the Section of Individual Rights and Responsibilities, urged Congress to establish "an independent, bipartisan commission" to investigate the response to Hurricane Katrina, to create safeguards for all flood-prone regions, and "to recommend appropriate measures designed to prevent or mitigate problems in responding to natural disasters in the future." Supporters argued that this commission was "the only way... that a thorough and objective" review of the Katrina disaster can be achieved. They continued, "With Congress' help, you may be able to have a systemic investigation" and "to seek the best ways to try to rebuild." The resolution was adopted with no opposition.

Recommendation 120A, sponsored by the Health Law Section, "encourages lawyers, law firms, legal services agencies, law schools and bar associations to develop medical-legal partnerships with hospitals, community-based health care providers, and social service organizations to help identify and resolve diverse legal issues that affect patients' health and well-being." Recommendation 120A was adopted by the House.

The Health Law Section sponsored Recommendation 120B, which "supports the study of regionalization of the nation's Emergency Care System and Emergency Departments and the enactment of legislation and promulgation of rules, specifically as it relates to disaster preparedness, as an effective and efficient means of improving patient safety, health care quality, cost reduction, coordination of care, and increased accountability of the system." The measure was adopted unanimously.

Recommendation 121, sponsored by the Commission on Law and Aging, "urges federal, state, local and territorial governments to improve the administration of elections to facilitate voting by all individuals with disabilities, including people with cognitive impairments that increase in frequency with age." Joseph O'Connor of Indiana argued for the Recommendation, stating that it strikes a balance between aiding those with cognitive impairments to vote while guarding against fraud. The House adopted the Recommendation.

The Criminal Justice Section sponsored Recommendation 122, which "urges federal, state, local and territorial governments to maintain the Medicaid eligibility of otherwise-eligible incarcerated persons and provide continuity of health care to persons newly-released from custody and urges Congress to repeal the 'inmate exception' to the Social Security Act." The House of Delegates adopted this resolution.

Other Remarks at the House of Delegates

Karen Mathis, in her farewell remarks to the ABA House of Delegates, extolled the good work her initiatives on "Youth at Risk" and the "Second Season of Service" accomplished in the past year. She also applauded the ABA's work in "continuing to seek repeal of the destructive policy of waiving attorney-client privilege." She also called for detainees to have an independent federal review of their status before a court, declaring, "The ABA will fight long and hard, and we will not stop fighting, for the right of habeas corpus." Congress adopted a "very misguided law that stripped jurisdiction from federal courts."

New ABA President Bill Neukom lauded the House of Delegates for addressing hot-button legal topics, including the U.S. attorneys firings and the state secrets privilege. He outlined his priorities for his upcoming presidency, which include shifting to a goals-based management structure of the Association. He also pledged to fight discrimination, as he announced an initiative to create a more integrated Goal IX effort. Goal IX was expanded at the ABA's Midyear meeting in February to include victims of discrimination based on sexual orientation and gender identity. Neukom also outlined his major initiative, the World Justice Project (WJP). The WJP "is a multidisciplinary, multinational movement to advance the rule of law worldwide. It brings together leaders from various fields to create new networks, tools, and information and to design and launch programs to strengthen the rule of law in the United States and other nations." Its four components include: a system of self-government with accountability under the law; fair, publicized, broadly understood, and stable laws; a robust, impartial, and accessible process; and a diverse, competent, independent, and ethical judiciary. A scholars program led by Nobel Laureats Dr. James Heckman and Dr. Amartya Sen will lead a scholarship program. The WJP will also develop a Rule of Law Index to assess countries' (including the United States) adherence to the rule of law.


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