February 2012 Bar Watch Update

Interview with ABA President-Elect

February 3, 2012

In advance of the 2012 ABA Midyear Meetings in New Orleans, we are pleased to publish an interview conducted over email with ABA President-Elect Laurel Bellows, who will become president of the Association next summer.  We are publishing her responses unedited.

1. What will be your most important goals for your upcoming ABA presidency, and have you mapped out any strategies for achieving them?

During my term as president, the ABA will focus on several initiatives: the preservation of our justice system through adequate funding for our courts; labor and sex trafficking of women and children in the United States; gender equality; the preservation and improvement of the civil jury trial in civil; and law and national security as it relates to cyber war.  The underfunding of our judicial system is an issue where we will build on the fine efforts of my immediate predecessors, Steve Zack and Bill Robinson.  Our strategy is not only to raise awareness of each of these issues, but also to bring people together to explore solutions that can be implemented practically and work effectively.

2. In your view, what is the role of the ABA in the legal profession, but also, more generally, in our society as a whole?

The ABA serves a wide variety of constituents: judges; law students; young lawyers; solo, small firm and large firm practitioners; public service and government lawyers; among others.  We rely on our members to chart a meaningful and productive course because it is our members who best understand what challenges face our profession and our justice system.  That said, the ABA has four goals that speak to its role: serve our members, improve our profession, eliminate bias and enhance diversity, and advance the rule of law.  It is a critical part of our mission to ensure the justice system works fairly and efficiently for everyone, and to ensure that every American has equal access to our courts to resolve disputes and vindicate their rights.

3. In its mission, the ABA states that it is the national representative of the legal profession.  Can the Association achieve this goal, and at the same time, stake out positions on controversial issues that significantly divide the ranks of the legal profession?   Policy recommendations dealing with the right to abortion, same-sex marriage, racial preferences, and stem cell research come to mind most readily here.

Yes, I believe the Association can be the national representative of the profession and develop important policy positions that speak to our constituents and the rights of the individual.  As I mentioned, the ABA represents a broad cross section of the legal profession, as does our House of Delegates—our policy-making body.  A robust and diverse membership assures that all viewpoints are presented and considered. Thoughtful and vigorous debate is part of the process, and there is equal opportunity to be heard.  Given our diverse membership, it is understandable that a member may not agree with every policy the ABA has adopted.  Our policy-making body—like the Congress—adopts positions by democratic majority rule.  We believe that all legal professionals should join the ABA, and we heartily encourage the active participation of each of our members in every aspect of the Association.

4. How do you respond to the allegation that the ABA, in its adoption of resolutions, has generally sided with plaintiffs lawyers?

Such a conclusion can only be drawn by a selective reading of our policy.  We represent the entire profession and have adopted resolutions that benefit all lawyers.  We opposed the proposed “Sunshine in Litigation Act,” which would have limited the court’s ability to restrict the disclosure of information obtained through discovery.  We recently worked with senior officials at the U.S. Department of Housing and Urban Development in an effort to revise a longstanding rule that threatened attorney-client privilege.  We opposed legislation that would have imposed burdensome and intrusive gatekeeper regulations on lawyers.  The ABA also opposed a proposed U.S. Department of Labor rule on “persuader activities” that would have required lawyers and law firms representing employers to report confidential information to the government.  Each of these actions is based on ABA resolutions that support the independence of the profession.  Our resolutions incorporate the perspectives of all our members as we consider matters of importance brought to the House of Delegates for consideration.

5. Will the ABA be weighing in on the current challenges to the constitutionality of health care reform legislation?

Because our House of Delegates has not taken a position on this issue, we do not have a policy basis for engaging in the debate.

6. Do you believe the Senate should reform its filibuster rules?  Why or why not?  If so, what reforms would you propose?

As with the previous question, the ABA has no policy position on this issue.  I do want to emphasize, however, that we remain greatly concerned about the high vacancy rate on the federal bench, and we hope the Senate will continue to confirm judges throughout the 2nd Session.  The ABA strongly believes that every nominee for the federal bench deserves an up-or-down vote in a timely fashion.

7. How do you define judicial independence?  In your view, is a system of “merit selection” and/or judicial elections a better system of selecting judges?  Should the ABA have a position on that?  What about partisan vs. non-partisan judicial elections?

Judicial independence enables judges to make impartial decisions based on the law—not on public opinion—that protect and enforce the rights of the people.  Judicial independence is essential to the functioning of a government comprised of three separate but co-equal branches.  As envisioned by our founders, the principle of judicial independence enables our judiciary to act as a check on the legislative and executive branches, allowing judges—without fear of reprisal—to strike down actions that run afoul of the Constitution.

The ABA strongly supports merit selection of state court judges for many reasons, not the least of which is that the administration of justice should not turn on a popularity contest or be subject to the corrosive influence of money.  If merit selection is not an option, the ABA supports judicial elections that are non-partisan.  Because we cannot afford to have any litigant think that justice can be bought, we adopted policy in 2011 that encourages states to establish clear procedures for judicial disqualification and timely review of denials of requests to disqualify a judge.  Simply put, the public must view our judicial system as fair and impartial.

8. In its efforts to improve justice abroad, how do you think the ABA ought to define the rule of law?

I admire the words of Supreme Court Justice Anthony M. Kennedy, who said that the Rule of Law “is superior to, and thus binds, the government and all its officials.  The Law must respect and preserve the dignity, equality and human rights of all persons.  To these ends, the Law must establish and safeguard the constitutional structures necessary to build a free society in which all citizens have a meaningful voice in shaping and enacting the rules that govern them.  The Law must devise and maintain systems to advise all persons of their rights, and it must empower them to fulfill just expectations and seek redress of grievances without fear of penalty and retaliation.”

9. Do you believe that there has been a decline in public respect for the legal profession, and if so, what can the ABA do about it?

The public not only has the right to question whether the legal system is fair and just, it has an obligation to speak out because that dialogue is an important part of our participatory form of government.  However, I am troubled by the attention that sensational cases receive, and by television shows and movies that do not depict accurately how our justice system works.  The ABA strives to educate Americans about the value of our profession—from the work we do every day to protect rights and resolve disputes, to the incredible amount of volunteerism lawyers do on behalf of those in need.

10. Conservatives are often on the fence about joining the ABA, maintaining it is a partisan organization, both in its policy positions and in its leadership.  What would you say to disgruntled conservatives and others who might feel that it is a waste of time to join the ABA because their perspectives would not be valued or respected? 

Is it a waste of time to defend the Constitution?  Is it a waste of time to promote access to justice?  Is it a waste of time to advocate for a fair and impartial judiciary and an independent legal profession?  We believe these objectives are supported by all lawyers and give us a basis for ongoing collaboration on issues of shared importance.  This past year, Ed Meese, a prominent member of the Federalist Society, and ABA President Bill Robinson worked together to write an opinion piece that discussed the underfunding of the courts.  The ABA is not a political organization.  We do not endorse candidates for office nor do we contribute to campaigns.  We welcome divergent views, and we invite anyone to join our Association who shares in our pursuit of professional excellence, and justice and freedom for all.

February 2012 Bar Watch Update