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Barwatch Bulletin from August 12, 2007

August 17, 2007

Sunday's Sessions

Three candidates for the ABA presidency participated in a forum Sunday morning before the House of Delegates Nominating Committee. The candidates will be seeking nomination at the 2008 Midyear Meeting in February.

Carolyn Lamm, former chairman of the ABA Standing Committee on the Federal Judiciary and a past member of the ABA Board of Governors, spoke first. She vowed to "give everyone a voice" in the ABA, if she were to be elected president. She expressed her concern about declining ABA membership, including a 5,000 drop in the past year. She hoped that half of all lawyers would become members of the ABA, and the "ABA should look like America." This year, Lamm has donated $4,300 to Hillary Clinton's campaign for president. Previously, she donated to Emily's List, the DNC, John Kerry, and Jane Harmon.

Paul Moxley, past president of the Utah Bar Association, spoke on how a contested election was good for the ABA. He affirmed that he would also focus his ABA presidency on increasing membership and would strive to create a "new passion" amongst its members. He suggested that tensions between state and local bar associations with ABA sections contributed to difficulty in attracting members.

James Silkenat, a partner at Arent Fox in New York, spoke third. His three goals for his ABA presidency were to: 1) increase membership and decrease the cost of belonging to the ABA; 2) strengthen members' efforts to be better lawyers; and 3) stand up for the justice system. He thought every licensed lawyer in the country should be an ABA member.

Silkenat declared that the ABA "can't be timid on big issues." He cited the school desegregation cases, Ledbetter, and habeas corpus rights for detainees as examples of issues in which the ABA should voices its views. He declared that the current detainee process at Guantanamo "undermined the reputation of the United States." Regarding membership, Silkenat thought the ABA needed to become more diverse with respect to gender, race, and sexual orientation. The Association should also be more diverse in opinions and ideas; "that's important too."

In the question and answer period, one delegate referred to ABA Watch's report on the Young Lawyers Division's efforts last February to require a "supermajority" in the ABA House of Delegates in order to take policy positions. The questioner asked what specific steps candidates would take to increase membership, as the YLD revealed large membership declines in its February report. Lamm responded that she would create task forces to attract members amongst big firm, small firm, and solo practitioner offices. She also vowed to "be on the ground more." Moxley vowed to make the ABA more member, rather than leader, driven. Silkenat suggested that the ABA should become more affordable and they should focus membership "on the front end" in law schools and with young lawyers.


Executive Power

On Sunday afternoon, The Federalist Society cosponsored a panel with the ABA's Section of Individual Rights and Responsibilities entitled "Congressional Oversight and Executive Power in Today's World." Former ABA President Robert Grey moderated the panel, saying it was "important for us to engage in a dialogue" about this issue. He expressed a desire to cosponsor more programs with The Federalist Society and to make this series "one of the shining stars of the annual meeting."

Baker & Hostetler's David Rivkin argued that the idea of presidential power has increasingly become politicized, as can be seen in the recent FISA debate. He stated that critics of the program showed a willingness to sacrifice legal and necessary measures for political gain. These critics suffered from a "factual ignorance," due in part to their "broad anti-executive feelings." Rivkin added that this political movement is anti-constitutional, and that the criticisms are "a-historical" and "absurd." The notion that it is always desirable to limit executive power is misguided. According to Rivkin, the real danger is how we are "emasculating the Executive."

Rivkin also addressed the movement to have the judiciary oversee every use of executive power. He contended that the judiciary is even less capable to oversee the Executive than Congress. Judges are "not equipped to handle policy issues." While the judiciary has been generally deferential to executive power to date, Rivkin feared "we are on the cusp of a major change in our constitutional system."

John Payton, a partner at Wilmer Hale, stated that he would not concentrate on specific policy disputes; rather, he would focus on the overarching debate on Congressional oversight. He called this debate "the crisis we are talking about today." Payton claimed, "It's elementary that informed oversight is crucial" for Congress to play its role in the system of checks and balances. Congress cannot act as a check if it cannot monitor the Executive. The current issue is whether Congress can oversee the Executive and "play its role" as a check and balance. According to Payton, if Congress cannot engage in this oversight, this "subverts the way our government is supposed to function."

Payton used the federal prosecutors issue as an example. The President will not let certain advisors testify or even show up to hearings, prompting the question: "How can you exercise oversight?" Payton claimed that these disputes are all "about boundaries." Thus far, the Courts have not been involved, and that is "unhealthy for our democracy." There has to be some means of resolving the political dispute over this boundary. He suggested that in a case such as the U.S. attorneys firings, where Congress and the Executive were in conflict, there should be an expedited review system for the judiciary, which could help resolve this "boundary dispute."

Glenn Sulmasy, a professor of law at the U.S. Coast Guard Academy, maintained that this "was not and should not be a partisan issue." He concluded that it was "a constitutional issue," as foreign affairs and especially war powers are in the hands of the Executive. Sulmasy explained that the Founding Fathers clearly thought that executive power included the power over foreign affairs. Early leaders such as Hamilton, Jefferson, and Washington all supported a strong executive branch in regards to foreign affairs. Montesquieu and Blackstone, who were greatly influential on the Founders, supported the idea that the Executive was dominant in foreign affairs. Beginning with President Washington, war power was "the sole province of the executive."

Sulmasy added that this does not mean that Congress has no role whatsoever. The current Congress, however, has attempted to set timetables and take other actions that were not intended by the Founders. Additionally, Sulmasy asserted that the notion of "an imperial presidency" was pure hyperbole. Sulmasy stated that the current time is fascinating "because it is a new war" which required new rules. It is better for the political branches, however, to make these decisions. The Supreme Court, for example, should not be overseeing combat operations.

Mark Agrast, Senior Fellow at the Center for American Progress, claimed that we get "a distorted" sense of executive power from this administration, which has sought the most extensive executive power in U.S. history, "without exception." This assertion of executive power began before 9/11, beginning with Vice President Dick Cheney's first address after taking office. 9/11, however, allowed for "the unleashing" of executive power. According to Agrast, the Founding Fathers' system of checks and balances is being tested today.

Agrast contended that the administration had assumed broad new powers pursuant to the War on Terror. The idea that the president can do whatever he wants in wartime, however, is the "most dangerous idea I have ever heard in my life." Congress has had limited executive power in recent history, such as forcing President Reagan to pull troops out of Lebanon and preventing President Clinton from putting ground troops in Kosovo. Agrast maintained that if Congress has the power to deny funding for wars, then it should have a right to ask for conditions to that funding.

The administration's advancing of "extravagant views" concerning executive privilege, in Agrast's view, has "discredited the entire notion." While there were cases where a president could assert executive privilege, such as Watergate, there were limits and "that privilege could be overcome" under certain conditions. Agrast claimed that the President has to give Congress what it "really, really needs" concerning oversight, and that Congress needs candor from the President.

Also on Sunday...

The Commission on Women in the Profession awarded its 2007 Margaret Brent Women Lawyers of Achievement Awards at a luncheon. Awardees included Western Progress Executive Director Roxana Bacon, 9th Circuit U.S. Court of Appeals Judge Marsha Berzon, Maryland Court of Appeals Judge Irma Raker, Atlanta attorney Marva Jones Brooks, and California Labor Commissioner Angela Bradstreet. The Commission is celebrating its 20th anniversary this year. Hillary Clinton, an early chairman of the Commission, appeared in a video to congratulate members on its anniversary.