The current issue of the Federalist Society's ABA Watch has a Q & A with the incoming ABA President. On the key question, he predictably gives the same inadequate stock answer the ABA has been giving for years.
Q: 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.Excuse me, Mr. President, but you didn't answer the question, just as none of your predecessors has ever answered the question. The question was not the process by which the ABA decides to take positions. It was whether the ABA can credibly claim to speak for the whole bar while taking such positions.
A:The ABA is by far the nation's largest association of lawyers, with almost 400,000 members. Our members are lawyers from all types of practice, from all across the country and in every legal specialty.
The 560-member ABA House of Delegates is our policy-making body and represents a broad cross-section of the legal profession from all state bars, many local and specialty bars, and Sections and other groups throughout the Association. It considers and votes on positions openly and democratically.
Over the years, the ABA has adopted thousands of policies on a wide array of legal topics. Nearly all of our policies are viewed as nonpartisan positions designed to improve the legal profession or the overall justice system. All voices in the ABA have an equal opportunity to be heard during our highly transparent and deliberative policymaking process. We welcome all lawyers to join the ABA and fully participate in that process.
Oh, and let's have a round of raspberries for the FedSoc's questioner while we are at it. The ABA's uniform support for the defense side against the prosecution in criminal matters is not among the things that most readily come to mind? Its efforts to subvert the only adequate punishment for the worst murders do not come to mind? Its blatantly biased "studies" of the death penalty in various states do not come to mind? Stem-cell research, of all things, is more salient than these? There is no better example of the ABA's ideological bias than its uniform tilt to the criminal defense side.
Back on the answer to the question, we have been hearing this call to join the ABA and try to change it from within for decades. It's been tried. It didn't work. It is hopeless. The ABA is so far gone that there is no hope of redemption, and the only thing we can do is vote with our feet. The only hope is that ABA members will constitute a smaller and smaller portion of American lawyers, and its claim to represent the whole bar will grow less and less credible.
There is a generational shift in attitudes toward the ABA. Conservative lawyers of baby-boom age and later generally see the ABA as the voice of the political opposition and reject its claim to be the voice of the whole bar. The Administration of George W. Bush, the first Republican president born after World War II, told the ABA it had no special place in judicial selection. In Bobby v. Van Hook (2009), the Supreme Court reversed the Sixth Circuit for giving too much weight to ABA guidelines, but Justice Alito went further, saying the guidelines, as a mere statement of a private organization, should not have any "privileged position." His predecessor would not have said that.