A large rift in the nation’s legal community went on display last week. It’s a rift mirrored in other realms such as journalism, academia, and organized religion.
On one side are those, usually conservative philosophically, who believe that organizations with supposedly nonpolitical missions ought to remain, yes, nonpolitical.
Politics is fine, they say, if that’s what the organization acknowledges as its mission. But if a group presents itself a neutral arbiter or a non-ideological “professional organization,” then it shouldn’t take political stances except on subjects that directly affect its own mission or its members’ professional prerogatives.
On the other side are those who, according to the conservatives, mask their politics in a false cloak of objectivity.
The rift was evident last week at the national convention of the Federalist Society, an association dedicated to conservative and libertarian legal thought. One panel discussion pitted against each other two genial Alabamians: Judge William Pryor of the U.S. 11th Circuit Court of Appeals and corporate defense attorney Tommy Wells, president of the American Bar Association.
The prescribed topic was whether judicial independence has been threatened by recent developments in the law and culture. But when Wells began arguing that one of the alleged threats to independence was the “over-politicization” of judicial selection processes, Pryor answered with a soft-spoken but stinging rebuke.
In effect, he said the ABA itself was guilty of what Wells was warning against.
“The ABA is far too political an organization,” Pryor said. It files far too many amicus briefs in cases that “have nothing whatsoever to do with the profession.” It takes positions on too many issues before Congress. And its committee that rates the fitness of federal judicial nominees can often devolve into “another subterranean form of politics… that can be an ugly form of politics as well.”
“It is important,” Pryor said to Wells, “to keep your own house in order.”
The audience, probably 1,000 lawyers strong, loudly applauded Pryor’s remarks.
When Wells protested that the ABA is apolitical and evenhanded, even the event moderator took issue. Ed Whelan, president of the Ethics and Public Policy Center, jumped in to cite specific examples that, he contends, show that the ABA’s judicial-nominations review committee is often biased and riven with conflicts of interest.
In earlier columns at National Review Online, Whelan has presented copious evidence for his conclusions about the ABA judicial review committee.
But what about Pryor’s broader complaint about the ABA’s alleged politicization? Is there a difference between how the ABA presents itself to the public and how it behaves?
Despite Wells’ protestations, the record clearly supports Pryor. In the ABA’s release in 2007 announcing that Wells had been nominated to be next in line as the organization’s president, here’s how the group described itself:
“As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law in a democratic society.”
In short, it describes itself as a professional service and standards organization.
Yet its board of governors each year adopts a large agenda of “legislative and governmental priorities” that run far afield. The current list, for instance, includes not just items that affect the profession itself, such as “access to legal education,” but also positions in favor of grants to help felons’ “re-entry” into society, for insurance mandates to cover substance abuse treatment, for U.S. payments to the United Nations for peacekeeping operations, for the controversial Law of the Sea Treaty, and against requirements that businesses verify the immigration status of new employees.
Furthermore, the ABA takes positions (outside of its “priorities” list) on more than 1,000 other legislative issues. It has passed resolutions in support of caps on carbon emissions, conventional arms reductions in Europe, federal funding for fetal tissue research, extension of highly controversial sections of the Voting Rights Act, and even a treaty governing human activity on the Moon.
A neutral observer might wonder why a broad-based organization of attorneys should be considered an expert on environmental matters, arms control, racial bias, or lunar landings. Intellectual honesty seems to demand that when it comes to politics, the ABA should start showing some, uh, Pryor restraint.
Quin Hillyer is associate editorial page editor of The Washington Examiner.
