Good Move

by hilzoy

From the Boston Globe:

"The board of governors of the American Bar Association voted unanimously yesterday to investigate whether President Bush has exceeded his constitutional authority in reserving the right to ignore more than 750 laws that have been enacted since he took office.

Meeting in New Orleans, the board of governors for the world's largest association of legal professionals approved the creation of an all-star legal panel with a number of members from both political parties.

They include a former federal appeals court chief judge, a former FBI director, and several prominent scholars -- to evaluate Bush's assertions that he has the power to ignore laws that conflict with his interpretation of the Constitution.

Bush has appended statements to new laws when he signs them, noting which provisions he believes interfere with his powers.

Among the laws Bush has challenged are the ban on torturing detainees, oversight provisions in the USA Patriot Act, and "whistle-blower" protections for federal employees. The challenges also have included safeguards against political interference in taxpayer-funded research.

Bush has challenged more laws than all previous presidents combined."

I was hoping to provide a complete list of the panel's members, but the ABA doesn't have one on its website. From the Globe article, however, it seems as though there are, if anything, more (or: more prominent) Republicans and/or Republican appointees than there are Democrats and/or Democratic appointees.

I think that this is a very good idea if it's done right (which means: if the panel is not partisan, and if its members are lawyers of real distinction.) The normal way of deciding whether something is constitutional is, of course, for the courts to rule on it. This has two drawbacks, however: first, it takes time for a case to work its way through all its various appeals, and second, in order to have a case at all, someone has to have standing to bring it, and in some cases it can be hard to find someone who knows that he or she has been harmed by the President's use of the powers he claims under his signing statements. Both of these problems are necessary evils in our current legal system, and it's appropriate that the judicial system, which exists not to provide general guidance but to assign binding penalties and obligations, works this way. However, if you just want some guidance in deciding whether or not the President can constitutionally claim certain powers, a non-binding and non-partisan panel of experts is an extremely useful supplement. ("Non-partisan" means that the panel should be composed of people who are open-minded and reasonable, not of people whose opinions can be predicted on the basis of partisan politics. It does not mean that the panel should not feel free to decide that the facts and the law decisively favor one side.)

The President has asserted the right to extraordinary powers, including the power to disregard laws he thinks impinge on his authority, and to do so not by challenging those laws in court, where his interpretation of the Constitution and the powers it gives him can be openly assessed, but simply on his say-so. I believe that while it is his right to say whatever he wants when signing a bill, it is not his right actually to violate any existing law. If he thinks a law is unconstitutional, he can veto it, or challenge it in court. Otherwise, he should obey it. However, I am aware that I am not a lawyer or a Constitutional scholar. I could easily be wrong on this or any other point of legal interpretation. I therefore welcome the creation of a panel of experts to weigh in on this question. Good for the ABA for stepping up to the plate.

Comments

[Jeff Eaton]

("Non-partisan" means that the panel should be composed of people who are open-minded and reasonable, not of people whose opinions can be predicted on the basis of partisan politics. It does not mean that the panel should not feel free to decide that the facts and the law decisively favor one side.)

This is, I think, one of the least understood concepts in American politics. It makes me sad that you had to articulate it explicitly, but the point was well made.

[Sebastian Holsclaw]

Resisting the President's claim is important so I support this from that perspective. But frankly the ABA is not non-partisan in the sense that you define it I wouldn't support this as a method for generally commenting on the Constitutionality of laws or administrative acts.

Bar associations have long tried to suggest that they can offer non-binding and non-partisan expert commentary on proposed laws and administrative acts, but in practice they degenerate in to very partisan actors. For many years they were conservative actors, but in the last twenty or so, large state bar associations have tended to tilt left and provide opinion on what they want Constitutional law to be rather than what it is. It isn't surprising that lawyers should tend toward advocacy, but if you want non-partisan analysis bar associations aren't one of the better places to go.

[bob mcmanus]

"Signing statement" is a political question rather than a legal problem. Like grounds for impeachment, Senate internal rules("Nuclear option"), judicial philosophy, and recently in the news, relations between the branches of criminal or other policing of its members(the search). IIRC, one of the grounds of Andrew Johnson's impeachment was Congressional resistance to Johnson firing a Cabinet Secretary.

The rules and process for electing a President are also ultimately political;Congress can actually install whomever they like, whenever they like.

Each side can and will try to justify itself with legalistic language and precedent...first search ever of congressional offices,always been a filibuster, etc. Just rhetoric, tho rhetoric is the currency of politics.

What does "balance of power" mean? How is it created, enforced, motivated? If all questions are settled in writing, there are no tensions, no competition, no advantages gained or privileges risked in asserting independence. Each branch must be structurally motivated to challenge the other two.

You prevent tyranny, especially majoritarian tyranny, by enabling, by compelling politics.
You compel politics with structural ambiguity. Wow, I can almost paraphrase Lacan:"The true important Constitution is the Constitution that is not written, the silence between the laws."

I have no legal objection to the President's signing statements. I have a political objection that Congress and the American people haven't kicked his sorry b**t out of office, into a court, and eventually to a Supermax.

[Hogan]

The list is up now:

Greco named Neal S. Sonnett of Miami, a former U.S. Attorney and now a lawyer in private practice, to chair the 10-member task force.

Members include William S. Sessions, a private practitioner in Washington, D.C., and former director of the Federal Bureau of Investigation and former chief judge of the U.S. District Court for the Western District of Texas; Patricia M. Wald, a member of the President’s Commission on the Intelligence Capabilities of the U.S. Regarding Weapons of Mass Destruction and formerly chief judge of the U.S. Court of Appeals for the District of Columbia; former Rep. Mickey Edwards (R-OK), now of the Aspen Institute; Bruce Fein, a syndicated columnist and an international consultant who served as associate deputy attorney general under President Ronald Reagan; Dean Harold Hongju Koh of Yale Law School; professor Charles J. Ogletree, director of the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School; professor Stephen A. Saltzburg of George Washington University Law School; professor and former dean Kathleen M. Sullivan of Stanford Law School; Mark D. Agrast of the Center for American Progress and former counsel and legislative director to Rep. William D. Delahunt of Massachusetts; and Thomas M. Susman, a private practitioner in Washington, D.C., and formerly chief counsel to the Senate Subcommittee on Administrative Practice and Procedure and general counsel to the Antitrust Subcommittee and to the Senate Judiciary Committee. Alan Rothstein, general counsel of the Association of the Bar of the City of New York, is an advisor.

[Dantheman]

In addition to agreeing with Sebastian's comment that the ABA is widely viewed by conservatives as being Democratic partisans, I am at a loss to understand what is gained in practical terms by this.

The Administration is not going to change its mind based on any group of lawyers saying its actions are unconstitutional, not when it can point to its own set of lawyers (many of whom either worked for the Administration or hope to be rewarded by it in the future) who will take the opposite position, and not while the so-called liberal media is unwilling to take a position and just will present both sides. It hopefully will obey a lower court decision on the subject, but short of a forceful decision by the Supreme Court rejecting the Administration's position, I am not inclined to believe it will (and note that Alito was a strong advocate of such signing statements during his Department of Justice tenure).

[Jeff Eaton]

In addition to agreeing with Sebastian's comment that the ABA is widely viewed by conservatives as being Democratic partisans, I am at a loss to understand what is gained in practical terms by this.

I won't argue about the tile -- one way or another -- of the ABA. But in all seriousness, what groups don't conservatives view as being Democratic partisans? Time and time again, we've seen even faithful conservatives who broke ranks on an issue or two get labeled with 'used to be a good guy, now he cheers for the other side and can't be relied upon for objectivity.'

That happens with liberal groups and individuals, of course, but it's been startling to see the frequency with which it's occurred over the past few years in conservative circles. Purity tests are all the rage.

In that sort of environment, what does it take to be considered 'nonpartisan?' I fear that the answer for the bulk of the 'faithful' boils down to "they come to a decision we like."

[DaveC]

I think that Canadian terrorist arrests over the weekend indicate that some form of domestic surveillence is needed, but my priorities obviously differ from the majority of readers.

[Steve]

"Democratic partisan" is just shorthand for anyone who criticizes Bush. I think Bruce Fein is a "Democratic partisan" by today's rhetorical standards.

[Jesurgislac]

I think that Canadian terrorist arrests over the weekend indicate that some form of domestic surveillence is needed, but my priorities obviously differ from the majority of readers.

Canadian priorities obviously differ from the Bush administration's, too. Rather than waste time surveilling vegan activist groups and trying to pass anti-gay marriage amendments, they focussed on actually identifying and arresting terrorists... it's a mad, mad idea, Dave, but it might just work in the US as well as it evidently did in Canada.

[cleek]

DaveC, what domestic surveillence powers did the Canadian cops use that their American counterparts can't ?

[liberal japonicus]

I'm not the type to complain about procrastination and blog posting frequency (logs in mine eyes and all that), but I would love to see a thread on the Canadian arrests, especially (being the latte sippin' birkenstock wearin' liberal I am) if it were juxtaposed with the UK arrests. I was particularly taken aback by the Daily Mail's contribution, which juxtaposes a grainy photo with a protestation of innocence to make it seem like Kahar Kalam is an incontrovertible jihadist. That, coupled with the multiple stories on the shooting (he was shot when his brother struggled with police was the first one, whoops, pull the other leg) makes me rather suspicious.

I'd also note that the Canadian arrests were part of a sting. I hope that it will be clear that there is no element of entrappment involved, not because I would like to give the people arrested excuses, but I believe we can ill afford even the appearances of entrappment. However, many of the news stories seem to elide the fact that it was a sting. I hope it will become clearer in time.

[Sebastian Holsclaw]

"I won't argue about the tile -- one way or another -- of the ABA. But in all seriousness, what groups don't conservatives view as being Democratic partisans?"

Interesting attempt to shut off argument about the specific tilt of the ABA while simultaneously making a blanket statements that conservatives aren't able to analyze the issue of actual partisanship.

"In that sort of environment, what does it take to be considered 'nonpartisan?' I fear that the answer for the bulk of the 'faithful' boils down to "they come to a decision we like."

This may or may not be an actual problem. The issue I have with the way you raised it though is that you seem to be attacking the idea of labeling something as partisan at all. Surely you will agree that there exists somewhere an organization that could be called "partisan". (At the very least I would argue that you should spot me the Democratic Party). Whether or not conservatives overuse the label "partisan" has absolutely nothing to do with the correctness of the proposition "Group X tends to be 'partisan'" or "Group Y tends to be 'non-partisan'". The ABA tends to be partisan. This is generally the case whether or not you believe that conservatives overuse the term.

Really I think that what you talk about as a "purity test" tends to apply to inclusiveness for some Republican circles. This tends to be reflected as "X isn't a real Y because he believes Z." (A formulation I've heard often in Democratic circles with respect to Lieberman). This is a different problem from that of deciding whether or not a group or an individual is non-partisan in analysis of policy. It would be easy to imagine a situation where someone could be not a "real Republican" because of some particular belief without automatically becoming a "Democratic Partisan".

There is a more important distinction to be had in any case. A single issue or sharply limited group could be "non-partisan" in analysis but reliably support only one party if their issue were completely dismissed by the other party. These groups tend to start from a bedrock principle and their conclusions naturally follow from there. They can often provide non-partisan information even if their analysis is deeply colored by their limited bedrock principles.

The ABA is not like that, because it takes positions on a huge variety of political topics and those positions are almost uniformly in support of the Democratic Party.

The Guttmacher Institute is more like what I think Hilzoy is asking for. It is strongly pro-choice in founding principles yet in terms of information collected (numbers of abortions per state, the weeks such abortions are performed, medical complications per week) it is a good non-partisan source.

[rilkefan]

Dunno if anyone here noted this shout-out to this blog.

[liberal japonicus]

This tends to be reflected as "X isn't a real Y because he believes Z." (A formulation I've heard often in Democratic circles with respect to Lieberman).

Boy, them are polite circles you travel in.

[Sebastian Holsclaw]

"However, many of the news stories seem to elide the fact that it was a sting."

Stings in a drug or sexual content context (between consenting adults) are objectionable because the police offer temptation to do something that

A) maybe really isn't that bad

and

B) maybe the person wouldn't have done or tried to do without the direct police intervention.

Both parts are important to me. For example:

The police hang out with a pothead. He has a personal stash that he sometimes shares with friends. The officer says that he doesn't want to take advantage of the pothead by accepting it as a gift, can't he pay some money? The pothead accepts money and has been stung into selling marijuana. I'm not comfortable with that because of A and B.

Make it acquiring large amounts of fertilizer for non-farmers? I'm not as disturbed because it is A) definitely a big problem and B) requires less trickery. If the sting involved talking the people into trying for a terrorist attack I guess I'm disturbed. If the sting involved people who already wanted to try out a terrorist attack and merely provided them the specific option to buy bomb-making material, I'm not particularly worried by the label 'sting'.

[Francis]

the degree to which the ABA is actually left-leaning, as opposed to being perceived as left-leaning (especially by those who didn't like the way the ABA rated certain judicial nominees), can be judged by reviewing the Board of Governors' Legislative and Governmental Priorities list, found here and the master list of ABA legislative and governmental policies found here.

personally, i think there is some merit to the claim that the ABA is mildly left-leaning in certain areas.

[hilzoy]

DaveC: "I think that Canadian terrorist arrests over the weekend indicate that some form of domestic surveillence is needed, but my priorities obviously differ from the majority of readers."

I agree with you, and I suspect that most of our commenters would agree as well. The question isn't whether there should be domestic surveillance; it's whether that surveillance should be in accordance with the laws governing surveillance or not. Even if I didn't think the laws were good ones, I'd favor, oh, you know, revising them, rather than asserting that the President has the right to just disobey them.

However, the laws allow for surveillance with a warrant, or (under FISA) without one under extraordinary circumstances, so long as the AG notifies the FISA court within 72 hours, or in time of war. Why is this inadequate?

Seb: about the ABA, I think the crucial question is the composition of the panel, which looks reasonably fair to me (though I don't know all of them.) And I think that while of course it's OK to call people partisan, there is a real question about what criteria some conservatives use to decide that someone is a partisan liberal. (Richard Clarke? Patrick Fitzgerald? The entire MSM? It's hard to see limits sometimes.)

[hilzoy]

In re conservative accusations of bias, consider this (via Atrios).

[Sebastian Holsclaw]

"about the ABA, I think the crucial question is the composition of the panel, which looks reasonably fair to me"

I think the crucial question in the instant case is the obviousness of the answer to the question. The ABA can appoint practically any serious lawyer of practically any political bent and they will find that the signing statements shouldn't change how the law and Constitution should actually interact. So for this particular problem the panel is fine.

But as a general idea I wouldn't trust the ABA to give important non-partisan commentary. As Francis' links show, the ABA legislative agenda is pretty much a recitiation of current Democratic Party platform positions. They have an opinion on almost everything (i.e. aren't a narrow advocacy group that favors one side or the other based on its view of the narrow advocacy topic) and the opinion can almost be predicted by answering the question "What does the Democratic Party say on the issue?" (which is to say partisan).

Basically in terms of support for a particular position there is no more weight in saying that "The ABA supports this approach" than there is in saying "The Democratic Party supports this approach". Neither is a particularly strong argument, but lots of people buy into such arguments so the it can't totally be ignored.

[liberal japonicus]

If the sting involved people who already wanted to try out a terrorist attack and merely provided them the specific option to buy bomb-making material, I'm not particularly worried by the label 'sting'.

I'm largely in agreement with this, but to step through my reasoning a bit more, when it is claimed that a plot is 'uncovered', yet we don't know about how the sting was set up and run, I tend to avoid jumping on the bandwagon that is taking DaveC to the conviction shortly followed by a trial (ok, I exaggerate for effect)

For example, here are some things that bother me.

-5 of the 17 were younger than 18
-the sting was in response to internet chatter
-while one set of reporting has suggested that this arrest is part of a 7 nation effort, another version has the US and others surprised by it. Sure, both are possible, but if it were a 7 nation probe, it is difficult to understand the following:

In court, he said, government lawyers broke with tradition and did not present a synopsis of the reasons for their charges, arguing that they had not had time to prepare it. It will, however, be presented at a hearing Tuesday.

and this

It was in 2004 that tech-savvy spies noticed some teens spending more and more time reading and posting to extremist websites, sources revealed to the Toronto Star. The sleuthing sparked a probe by the Canadian Security Intelligence Service which eventually uncovered an attack plan by a group of extremists.

The country's top investigators came together through an Integrated National Security Enforcement Team comprised of RCMP, CSIS, federal agencies and provincial and municipal police.
CLOAK-AND-DAGGER
The cloak-and-dagger group is made up of more than 400 highly skilled sleuths who spent thousands of hours diligently conducting the investigation, officials said in announcing the raids.

There are logical explanations for this, but I've reached a point where I'm not giving any government the benefit of doubt.

[Francis]

Let's have a vote. How many of these positions are associated with a partisan Democratic party, and how many should have bi-partisan support.

Access to Legal Services

The ABA supports a strong, well-financed Legal Services Corporation to provide civil legal services for the poor.

Access to Legal Education

The ABA urges law schools, state and local bar associations, and federal and state lawmakers to establish loan repayment assistance and loan forgiveness programs for law school graduates accepting low-paying, public interest employment.

Anti-Terrorism and Preservation of Due Process

The ABA urges that U.S. citizens and other residents detained as "enemy combatants" be afforded certain procedural rights, including the opportunity for meaningful judicial review of their status and access to counsel.

Federal Tort Law

The ABA opposes preemption of the state tort laws by enactment of federal legislation in such areas as medical professional liability, automobile liability, and broad product liability.

Immigration

The ABA supports legal immigration based on family reunification and employment skills, due process safeguards in immigration and asylum adjudications, and judicial review of such decisions.

Independence of the Judiciary

The ABA opposes legislative initiatives that erode the judicial process (including curtailment of the jurisdiction of the federal courts in constitutional cases) or infringe upon the separation of powers between Congress and the courts.

Independence of the Legal Profession

The ABA believes that primary regulation and oversight of the legal profession should continue to be vested in the court of highest appellate authority of the state in which the attorney is licensed.

Public Safety and the Preservation of Civil Liberties

The ABA urges that Congress and the President seek to maintain a balance between support for stronger governmental power to protect public safety and for protecting the integrity of our justice system and maintaining our nation’s individual liberties.

Rule of Law - International
The ABA supports adequate funding for domestic and international agencies that promote the rule of law, including the prompt payment of U.S. assessments to the United Nations for its regular and peacekeeping expenses.

Tax Simplification

The ABA supports simplification of the tax laws to the maximum extent possible, consistent with basic equity, efficiency and the need for revenue.

U.S. Patent and Trademark Office Funding

The ABA supports making available to the Patent and Trademark Office (PTO) all revenue generated by user fees charged for patent and trademark services.

Youth-at-Risk

The Association supports federal legislation to provide funding to strengthen state programs that provide services to youth at risk and to state courts to help them address legal problems of vulnerable youth at risk, including support for programs to assure that youth are afforded full legal rights through any relevant court process and are represented by counsel.

If these truly are partisan policies, then the Republican party has abandoned its historic commitment to the rule of law.

[Anarch]

Basically in terms of support for a particular position there is no more weight in saying that "The ABA supports this approach" than there is in saying "The Democratic Party supports this approach".

That's manifestly untrue, as it takes as given that those positions are somehow tainted by their association with the Democratic Party. You might just as easily, and just as wrongly, assert that, say, "the IPCC supports this approach" is equivalent to "the Democratic Party supports this approach" or what have you. In short: this is precisely the sort of misuse of "partisan" (implicitly here, but present nonetheless) that Hilzoy talked about above.

[hilzoy]

Francis: the only two of those positions that strikes me as the least bit controversial are Federal Tort Law (where I think the Democratic position is explained by the trial lawyers' position, rather than vice versa), and the one about at risk youth, which shouldn't be controversial.

Maybe also the one about legal services for the poor; but the idea that anyone is OK with poor people being denied legal representation in this country is so repugnant to me that I refuse to acknowledge that it might be true.

Grr.

[Sebastian Holsclaw]

"If these truly are partisan policies, then the Republican party has abandoned its historic commitment to the rule of law."

You were incredibly selective in your choices.

"Oppose in principle capital punishment for any offense committed while under the age of eighteen."

Why would the ABA be committed to ANY position on this?

"Urge strengthened recruitment and training programs to assure increased employment of women throughout the criminal justice system."

If women choose not to be employed in certain sections of the criminal justice system (especially as guards) who can blame them? If they aren't as often cops, why should the ABA care?

"Support retention in its current form of the exclusionary rule and oppose legislation which would restrict the application of the rule."

I think this could be fairly argued on either side without suggesting that one side had abandoned its commitment to the rule of law.

"Urge state and local bars to join the ABA in developing state and local initiatives aimed at preventing inhalants abuse."

Huh?

The whole Gun Control platform of the ABA is blatantly partisan.

"Oppose legislatively or administratively imposed mandatory minimum sentences not subject to probation or parole, including sentences for drug offenders."

Their dislike of all mandatory minimum sentences is not easily explicable.

"“Soft Money” Contributions. Oppose the solicitation and use in presidential and congressional election campaigns of “soft money” contributions and support efforts in Congress and before the Federal Election Commission to prohibit such contributions."

I think this one might reasonably be argued with. Nice to see the ABA ignore the 1st Amendment.

"Urge application of election laws to encourage political activity through the Internet while upholding First Amendment rights, limiting unfairness, corruption or undue influence and increasing citizen participation in the political process in all segments of society."

See above.

"Voter Participation, Motor Voter. Support efforts to increase voter registration through state and local agencies that have direct contact with the public such as licensing agencies."

Motor Voter laws have a number of fraud related issues.

"Support procedures for public participation in the determination of policies and actions to safeguard the public from effects of peaceful nuclear explosions under the "Ploughshare Program.""

Nuclear policy too?

"Urge Congress and the Administration to enact legislation elevating the U.S. Environmental Protection Agency to Cabinet-level status."

Umm, if you say so.

"Oppose use of corporal punishment in institutions where children are cared for or educated."

The American Bar Association should definitely take a stand on spanking.

"Support a five-year reauthorization of the NEA with no restrictions on the content, subject matter, message or idea of what the endowment may fund."

The ABA should definitely take a stand on making sure that the NEA gets money with no strings.

"Urges Congress, the U.S. Postal Service, etc. to ensure the prompt delivery of and adequate customer access to the U.S. mail for people experiencing homelessness."

Whatever the independent merits of this are, it seems incredibly silly for the ABA to take any stance on it.

"Support the global strategy of the WHO for the worldwide prevention and control of AIDS."

Huh? I probably agree with most of it, by why in the world should the American Bar Association have any stance on it?

"Oppose Governmental prohibitions on scientific research conducted in accordance with accepted safeguards for therapeutic purposes, including cell nuclear transfer research not intended for human cloning."

Surely not normally within the purview of the ABA.

"Reaffirm support for legislation to provide for every American access to quality health care, regardless of income, including universal coverage through a common mechanism, a single payor system, appropriate containment of costs and administrative burdens on employers, assurance of quality and appropriate care, and freedom of choice, procedural due process, and administrative simplicity for consumers."

And a pony.

"Approve expansion of the Medicaid program to cover all pregnant women and children with family incomes less than 200 percent of the federal poverty level."

Where did this come from?

"Opposes any structural or financial changes in the Medicaid program and the need for innovation in shaping more effective health care system that would weaken the current entitlement nature of the program or shared legal obligation that the federal, state and territorial governments have to provide a comprehensive set of benefits to all individuals who meet eligibility criteria and supports Medicaid restructuring that adheres to enumerated principles."

Wouldn't want to weaken the entitlement nature of the program. That would so obviously be evil.

"Urge US to present a declaration recognizing as compulsory the jurisdiction of the ICJ"

This is probably against what would normally be considered the interests of the ABA.

"Support U .S. ratification of the "Agreement Governing the Activities of States on the Moon and Other Celestial Bodies,""

How about no.

"Abortion Financing for Indigent Women. Support legislation on the federal and state level to finance abortion services for indigent women."

It's a choice (that has to be funded by the government because heaven knows Planned Parenthood doesn't provide abortions on sliding scale fee structures).

[Sebastian Holsclaw]

"That's manifestly untrue, as it takes as given that those positions are somehow tainted by their association with the Democratic Party. You might just as easily, and just as wrongly, assert that, say, "the IPCC supports this approach" is equivalent to "the Democratic Party supports this approach" or what have you. In short: this is precisely the sort of misuse of "partisan" (implicitly here, but present nonetheless) that Hilzoy talked about above."

No. I have done no such thing.

I said that "the ABA supports X" is NO MORE VALUABLE than "the Democratic Party supports X". The ABA is a partisan group which almost always supports the Democratic Party. The Democratic Party may or may not have fantabulous reasons for any particlar view 'X'. On any given issue the reasons given by the Democratic Party may be be incredibly convincing or pathetically sparse. Whatever they are, knowing that the ABA also supports something will on most issues give you zero extra information compared with merely knowing that the Democratic Party supported it.

[lily]

I don't believe that the statement that the ABA always supports the Deomcratic party is true. The ABA has not supported the nominations of some judges who were extreme in their politics and lacking in experience but that doesn't make them supporters of Democrats. The low rankings were the natural result of the nomination of unqualified or only marignally qualified extremists. The ABA gave high ratings to conservative judge nominees that had experience and a track record of rulings that, while conservative, were within the range of what is considered normal in this society. This ABA is biased thing only came up, to my knowledge, after the ABA gave low ratings to nominees that were nominated for their non-mainstream views. If the Republicans insist on nominating extremists, the ABA has no choice but to rank them as unqualified. The partisanship is with the people who refuse to recognize the extremism, not the ABA.
Now maybe the ABA is active in some whole other sphere of which I am unaware that gives them the opportunity to display bias, but so far as i know they mostly got this bias rep for failing to go along with nutty nominations.

[Francis]

incredibly selective?

uh, no. What I posted was the complete Board of Governors' Legislative and Governmental Priorities list for this year (with some supplemental text redacted for brevity).

you, SH, selectively chose from the master list created by the House of Delegates.

you, not I, were incredibly selective. (I am remarkably angry about the accusation against me in SH's comment for some reason. I request that the frequent readers here check my sources linked above and tell me who is being disingenuous.)

It's worth noting that the different committees in the House of Delegates have very different political makeup. Some are very left. I don't have time right now to review past lists of the Board of Governors, but I'd be curious if that list were particularly political.

It's curious that SH is dismissive of an organization which represents about 1/2 of all lawyers in the country as being aligned with the Democratic Party. An independent observer might conclude (a) there's something really wrong with the Republican party's commitment to issues surrounding the rule of law; or (b) SH is trying the classic poisoning-of-the-well rhetorical trick; or (c) both.

[kenB]

Francis, you didn't specify in your original post what list you were drawing from. So IMHO it was understandable for Sebastian to assume that you were cherry-picking, which meant that he just needed to highlight a few other more controversial positions to show that your list wasn't exhaustive.

Not sure which of the two sources is a fairer dataset on which to test Sebastian's assertion...

[Sebastian Holsclaw]

Francis, I'm sorry. I read both sources when you initially posted them and thought about them (together) as a dataset on the ABA's views. When you posted an hour later I didn't realize that you had solely drawn from the first.

Basicially your list combined with mine show that on non-controversial items the ABA is non-controversial while on controversial items it is liberal. Also on abstract levels it tends to look more non-controversial than it really is. Particulars tend to trend strongly liberal.

Which is pretty much how one would expect a partisan organization to work.

[John Lopresti]

As the largest voluntary professional legal association in the US, the ABA is fairly mainstream US politics, and its reputation for substantiveness has leant credence to its statements. If trial lawyers are described as predominating ABA, and if trial lawyers are depicted as left in politics, their distance from mid spectrum nevertheless remains within the ambit of American mainstream polity. A lot of judges are in ABA, too. Conservative political trends have yielded new laws narrowing some options trial lawyers had to earning large sums of cash at their profession. This, in fact, was one of the attributes which attracted my curiousity in the naming of Senator J. Edwards as the VP candidate on the Gore ticket last election; but as near I could discern his case history was fairly opaque, though warmly human and had enriched him based on some cases which caused wide publicity in his home region. In sum, I wanted to know more; but his website and online resources seemed to have little about his trial lawyer experience. I thought him rather centrist.

With respect to the individuals on the ABA panel, some seem chosen for credibility on the right, as ABA wants its findings legitimized by balance of the panel's composition. The past six months have witnessed great turbulence in mainstream law faculty discussions over the unitary executive excesses of the current administration. Certainly, Yale, is one mid spectrum Republican presence, yet one with deep scholarship and which produces some very high achieving government officials. Yale's dean Koh has been among the public voices recently decrying rule by fiat.
ABA, doubtless, is a little miffed at its decrement of influence in court nominee selection during Bush 2's 2 terms: ABA may opine (very qualified, qualified, unqualified; by secret ballot after dozens of confidential interviews of peers) but only after the nominee has been selected. In fact, when Bush during his first term declared ABA was to be excluded from the first phase of the vetting of bench nominees, it was for nearly two years nearly impossible to find any material at all on the ABA website concerning the previously titled 'ABA Standing Committee on [Supreme Court] Nominations', or so it appeared to this frequent visitor; ultimately in the past year, the 'ABA Standing Committee on [Supreme Court] Nominations' webpage reappeared with much new detail. ABA for a time even had posted the advisory that no such standing committee was in existence any longer. I doubt there is ill animus toward the administration at ABA; rather, the controversy is spread throughout the legal community; and it is seeking a normalization. We accomplish this by congressional hearings, customarily; but, given the current political alignments in congress, the extra-congressional studies attain more importance; and, certainly, a review by ABA, the largest centrist such entity, will add to the impact of congress' own findings and reinforce the developing sensibility that excesses are occurring, and the need for accessing and activating the checks and balances built into our system. We know congress has scheduled hearings. Some of the contributors here are visitors at other sites where we may post (discussions led by attorneys Balkin, Lederman, Denniston, Geoffrey Stone, and even the Pocket Part site at Yale, the student law discussion group where dean Koh posted remarks on this topic 3 months ago); besides those, I recommend the unilateral sites which do not have a post feature (Philip Cooper's site, Christopher Kelley's site, both are professors who are signing memo experts and presidential historians).

[Sebastian Holsclaw]

"An independent observer might conclude (a) there's something really wrong with the Republican party's commitment to issues surrounding the rule of law; or (b) SH is trying the classic poisoning-of-the-well rhetorical trick; or (c) both."

Or that the position of the ABA on something has very little to do with "commitment to issues surrounding the rule of law" which is what I have been saying all along. Or any of hundreds of other non-poisoning-of-the-well explanations thanks for asking.

[Sebastian Holsclaw]

"The ABA has not supported the nominations of some judges who were extreme in their politics and lacking in experience but that doesn't make them supporters of Democrats. The low rankings were the natural result of the nomination of unqualified or only marignally qualified extremists. The ABA gave high ratings to conservative judge nominees that had experience and a track record of rulings that, while conservative, were within the range of what is considered normal in this society."

Funny how that worked in the case of Brett Kavanaugh who was "well qualified" the first two times around and has become merely "qualified" in the face of Democratic Party opposition to his appointment. Since his work experience didn't vanish overnight that is a bit odd.

[John Lopresti]

Take the Kavanaugh judicial nominiation rating by ABA as an instance of ABA's polity: his ranking was downgraded from very qualified to qualified. This for a politico conservative who has not been a judge before, and, as I understand it, has not appeared in court as a barrister. ABA chose to rate Kavanaugh favorably twice. I trust his supporters are aware of his work in the Bush 2000 campaign. ABA is saying, he may make a good judge. That is coloring it positively, for a 'liberal' organization. I think ABA's ability to yield that kind supportive ranking for someone as patently conservative as Kavanaugh makes a definitive stattement that ABA is capable of fair assessment. The rankling bit of history here is that ABA is on some major political ostracism lists for its work in the Bork nomination process. I wonder what now ex-judge Luttig would say about ABA's panel for studying Presidential signing memos, having quit his job recently following the peculiar court stripping dissension surrounding a case on which he was the presiding judge.

[John Lopresti]

Seb, we were typing in tandem. I defer to your comment.

[Sebastian Holsclaw]

"If trial lawyers are described as predominating ABA, and if trial lawyers are depicted as left in politics, their distance from mid spectrum nevertheless remains within the ambit of American mainstream polity."

"Within the ambit of American mainstream polity" is a rather broad concept. NARAL is within the ambit of American mainstream polity. Pat Robertson is within the ambit of American mainstream polity. Neither NARAL nor Robertson could be fairly described as non-partisan. Just because the ABA isn't Communist doesn't mean it is non-partisan. It substantially and reliably leans toward the views of the Democratic Party. That's fine, but I wouldn't chose them as some neutral arbiter of non-obvious political questions.

[liberal japonicus]

I see your point, kenb, but Francis earlier noted

personally, i think there is some merit to the claim that the ABA is mildly left-leaning in certain areas.

which seems like he is at least being open-minded about this, and for the temerity of giving an inch, he has his cut and paste list fisked and he is accused of being selective in his choices, so it is understandable that he is a little exercised.

In fact, when presenting the broad consensus of the ABA, he finds himself confronted with positions that are on the margins (and any large organization has positions that are marginal, because people don't have the time to argue thru every point and often, the person who keeps some vital but obscure part of the organization going (like the newsletter stuffing committee, say) and on whom the organization really can't find a replacement because the job is too boring and no one wants to bother with, but has some slightly or even very outlandish idea about X which is tolerated because everyone knows it isn't too important.

Sebastian has apologized, but it seems bad form to apologize to Francis and then immediately take a shot at him afterwards, but, as usual, SMMV.

[John Lopresti]

I guess there are some liberal Republicans. Maybe it is a mellowing with age. The website of a Yale graduate attorney who worked in the White House, and has railed against the unitary executive theory as practiced by Bush. Elder J.Dean even appeared before congress in a hearing recently on this topic.

[Katherine]

I think the standing argument is pretty darn sketchy, actually. The only reason they have any trouble proving standing is that the administration has classified the evidence....it's not like there isn't a real case. Maybe I'm being paranoid here but at this point I would be quite surprised if someone I know personally hasn't been caught up in this program.

The GTMO lawyers have very good reason to believe that they've had conversations with client's families or former clients listened in on. Almost by definition, any family member of a GTMO prisoner close enough to file a next friend petition or former GTMO prisoner has been found to be "associated with Al Qaeda", and most of them live overseas. The administration has been asked whether it listens in on these conversations and has refused to answer. If someone who actually has been subjected to this program sues, and makes out a reasonable case that they have been subjected to it, the administration shouldn't be able to throw the case out because the judge refuses to have them say in camera & under oath whether this person is covered.

In general I think standing doctrine is fairly sketchy.

Anyhoo. This obviously won't change the administration's mind, but the point is to get the argument behind "he said she said" in the public's and press's mind. I don't think it'll even be all that successful at that--not so much because the public thinks the ABA are a bunch of liberal hacks as because the public thinks there a bunch of boring pointyheaded lawyers--but it can't hurt to try.

SH, the ABA leans left but to equate it with the Democratic party is at least as silly as to claim it is completely down the middle in favor of the rule of law. A lot of experts lean liberal in their controversial positions--the National Academy of Scientists, the major human rights orgs, most college faculties in any subject--it doesn't make their statements on a subject worth no more than the DNC.

[Sebastian Holsclaw]

"SH, the ABA leans left but to equate it with the Democratic party is at least as silly as to claim it is completely down the middle in favor of the rule of law."

You could easily predict the ABA position with excellent accuracy by asking yourself "What is the Democratic Party Position?" That isn't true with say college professors or human rights organizations. Leaning left isn't the same as having pretty much the same positions as the Democratic Party on almost everything. It isn't shocking that they have similar positions, trial lawyers are a huge influence in the Democratic Party. In many ways it functions like the national teacher's organziations. You could even argue that the Democratic Party positions are coming from the lawyers in many cases. That's fine. My point is that if you want a non-partisan source commenting on the laws, the ABA isn't a good choice. It is fine in this instance--where Bush is so clearly ridiculous. But as a general matter I wouldn't trust the ABA's opinion on anything independent of specific explanations of how it came to its conclusions. Basically (for me) the additional independent evidentiary value of "The ABA says X" is zero. In a limited area of expertise it might be more valuable than that, but the ABA seems to think its area of expertise is "all things on which there are or could be laws" and on such matters its opinions are tightly correlated with the opinions of the Democratic Party. That is fine. I just don't need to find out what the Democratic Party thinks and additionaly find out what a source that nearly always agrees with the Democratic Party thinks. I suppose there might be slight value in the surprising case where it disagrees with the Democratic Party (it might be useful to find out why such a surprising thing would ever happen) but other than that, it isn't useful or intellectually interesting.

By contrast I think that Amenesty International sometimes has odd focus or methodology issues, and I certainly think it is sort of leftish, but its voice is not "the same" as that of the Democratic Party. I think many college professors are deeply out of touch with reality, but they rarely have the correspondence of views that you would find on a map of ABA views to Democratic Party views.

[Sebastian Holsclaw]

Now that is an amusing mispelling of Amnesty International.

[CharleyCarp]

There is a sense in which the ABA is like the Democratic party. It acts through individuals who not under authoritarian control. In this case, there's a panel, and it's going to come up with something. Whether or not that something reflects the views of the Board of Governors, or of a majority of the membership, remains to be seen.

On the broader point, I would guess that among the million or so lawyers in the country, a higher proportion favor the positions in Francis' 4:17 than the proportion who do among the general population. And among the million lawyers, I'd guess that the proportion is higher among the 400,000 ABA members.

[CharleyCarp]

SH, would it shock you to think that maybe it runs the other way -- that on justice issues, the current moderate, non-Left Democratic party follows the positions of the ABA?

[Ugh]

Seb: It isn't shocking that [the ABA and Democratic Party] have similar positions, trial lawyers are a huge influence in the Democratic Party.

I assume by trial lawyers here you mean plaintiff trial lawyers, and not the trial lawyers that defend corporations sued by said plantiff trial lawyers, of which there is, by Ugh's law of rich corporate defendant representation, an equal, if not larger, number?

And note that the ABA has a large membership of lawyers that are not trial lawyers, plaintiff or defendant, this commentor included.

[Katherine]

"Urges Congress, the U.S. Postal Service, etc. to ensure the prompt delivery of and adequate customer access to the U.S. mail for people experiencing homelessness."

Whatever the independent merits of this are, it seems incredibly silly for the ABA to take any stance on it."

You could actually make a case that they need mail delivery for access to the justice system. Service of process and all that.

Opposing mandatory minimums seems like a very easy one to explain: mandatory minimums transfer discretion in sentencing from the judge to the prosecutor. Prosecutors like this, defense attorneys and judges hate it, there are defense attorneys and judges combined in the ABA than prosecutors.

The ICJ seems easy to explain if you view them as supporting law for law's sake rather than their own professional monopoly--though, there should certainly be something in there about how it could not trump U.S. citizen's constitutional rights.

Don't think the exclusionary rule is a close call.

That said, in general you have a point: Plenty of items on your list don't have much connection to the legal profession and are not things that lawyers have any extra expertise on...personally I'd rather they were more implacable about due-process, rule-of-law type issues and shut up a bit more about everything else.

But, based on Francis' list they DO make those a higher priority.

[Katherine]

One more thing: the rule-of-law type positions are NOT uncontroversial in US politics. Many of them are minority positions. Many are also positions that the Democratic party does not make any sort of priority at all.

I do think the GOP has a serious rule-of-law problem, and this President has a bigger one. I'm not only talking about the war on terror cases, I'm also talking about the Texas capital punishment and indigent defense systems. It's no coincidence that some of the first people to freak out about Guantanamo were death penalty lawyers.

Here's a lovely example of the Texas justice system in action, btw:

Mr. Panetti, in prison now almost 14 years for the killings in 1992 in the quaint Hill Country city of Fredericksburg, has long seemed to exemplify madness, addressing himself to the jury in his trial in 1995 as "the born-again April Fool," a schizophrenic healed by God.

In and out of mental institutions 14 times and addicted to drugs and alcohol since he almost drowned as a child and was nearly electrocuted by a power line, Mr. Panetti wore cowboy costumes to court, delivered rambling monologues, put himself on the witness stand and sought to subpoena the pope, Jesus and John F. Kennedy.

Forget the ethics of executing this guy or rejecting the insanity defense--who, exactly, found him competent to represent himself at trial?!?

Since it's pretty easy to see that the ABA has more business and expertise in talking about indigent defense and the Padilla case than in talking about stem cell research and the EPA, wouldn't it make more sense to pay attention to them on "rule-of-law" issues and ignore them on "this is something you could write a law about" issues than to dismiss everything they say equally?

[John Thullen]

My son rolled through a red light the other day and when I gave him the business, he pointed out that Bush had him beat 750 to 1.

He is one child left behind. What will become of him in the United States of Lying and Cheating?

[Sebastian Holsclaw]

"that on justice issues, the current moderate, non-Left Democratic party follows the positions of the ABA?"

The positions the ABA takes aren't "justice issues". They take positions on practically everything. And not-so magically, each position is the same as taken by the Democratic Party. And that is fine. I'm all for freedom of association and free speech. But it makes it an unlikely 'non-partisan' group.

[Sebastian Holsclaw]

"Since it's pretty easy to see that the ABA has more business and expertise in talking about indigent defense and the Padilla case than in talking about stem cell research and the EPA, wouldn't it make more sense to pay attention to them on "rule-of-law" issues and ignore them on "this is something you could write a law about" issues than to dismiss everything they say equally?"

Sure. But their blatant partisanship (or lockstep with the Democratic Party) on everything else makes it seem more likely that their 'professional' judgment might be partisan there too. That is why they would have been better off not being so partisan on everything else.

That said, of course I notice when they something that is more in their sphere. But "things with laws" isn't what I think of as in their sphere.

[Francis]

or, once again, SH could separate out the issues (over 1,000 at any given time, some of which are nakedly partisan) raised by the membership from the issues supported by the Board of Governors.

ye gods, seb, Board of Governors IS NOT EQUIVALENT TO (!=) Council of Delegates.

note: I am, i think, a member of the ABA. (I was for a while; I may have let my dues lapse.) As best I can tell, the difference between issues supported by the Council of Delegates and those supported by the Board are as different as the Texas Republican Party Platform and Karl Rove's to-do list. One represents a massive wish list of various constituents, most of which have no chance of getting any support, the other represents the real policy of the ABA.

I think I have a sense of the frustration that Gary has when he posts all his links and the ensuing conversation demonstrates that no one has read the links. One of my links was to the Governors' political strategy for this year; the other was to an 80-page document assembled by the Delegates.

if SH's life is made easier by dismissing all of the work of the ABA as being captive to the Democratic party, there's certainly nothing I can do to change his mind. My personal opinion is that being so dismissive of the work of an organization that represents about 50% of all lawyers in the country says a lot more about SH's desire not to hear anything which might shake his views of the world than it does about the ABA's political leanings.

[Nell]

Hilzoy: the idea that anyone is OK with poor people being denied legal representation in this country is so repugnant to me that I refuse to acknowledge that it might be true.

Normally you're much tougher-minded than this. I'm going to chalk it up to the stress of moving, which can crush the strongest among us. Still, it is true, and in a few weeks I hope you'll be up to acknowledging it. From Nixon to Reagan to Bush, the Republican Party's relentless campaign to erode and destroy legal aid are as real as the earth beneath our feet (or behind those bookcases).

[hilzoy]

Francis: Seb explained and apologized. Be nice while the anger dissipates.

I know whereof I speak, since just now I ought to call a friend of mine (remember the friend who left all her stuff in my garage?), but since I have just spent altogether too long dealing with the remains of her stuff, including e.g. scraping parts of her boxes off the floor, I can't call now because I'm madder than I think is justified. Annoying, but there it is.

[hilzoy]

Nell: I know. You're right. But how did you know about the bookcases? ;)

[Sebastian Holsclaw]

"My personal opinion is that being so dismissive of the work of an organization that represents about 50% of all lawyers in the country says a lot more about SH's desire not to hear anything which might shake his views of the world than it does about the ABA's political leanings."

About what percent of the nation's voters does the Republican Party represent? Do you judge them on the fact that they represent 50% of the class or on other standards?

[Anarch]

Whatever they are, knowing that the ABA also supports something will on most issues give you zero extra information compared with merely knowing that the Democratic Party supported it.

But you see, you're making exactly the same mistake you were making previously. The technical term for it would be something like extensionalism: you're arguing that because if the Democratic Party supports issue X then the fact that the ABA also supports it adds no new information because -- implicitly -- the only thing that's relevant is the fact of that support. That's precisely what I'm saying is wrong. Consider the following possibility: it could be that the ABA is a centrist organization composed of experts in the field of law (a not-entirely outré possibility) whose considered opinion of the law that issue X should be supported. In that case, the mere fact that the Democratic Party supports that issue is not the be-all-and-end-all of information there, since the Dems' reason for support could be entirely different (and partisan in the manner that you're describing).

IOW, you're implicitly presuming that the partisanship of the Democratic Party is the primary, and indeed sole, arbiter of support on a given issue, which strikes me as, well, crap. It may be that the ABA and the Dems have both a strong level of correlation and a strong level of causal linkage, which would indeed render the additional support of the ABA trivial; but you haven't even come close to demonstrating that yet. Or to put it another way: sometimes truth ain't down the middle; sometimes one side is just a lot more right than the other. Whether that applies here -- in particular, whether that applies to the Dems and the GOP vis a vis the rule of law -- is an exercise left to the reader.

[Sebastian Holsclaw]

"IOW, you're implicitly presuming that the partisanship of the Democratic Party is the primary, and indeed sole, arbiter of support on a given issue, which strikes me as, well, crap."

Actually if I'm making that error at all it is completely in the other direction. I'm presuming that the partisanship of the ABA (pro-Democrat) is the primary arbiter of support on a given issue. I tend to believe that many Democrats believe all sorts of things on what I would call "non-partisan" bases. The ABA supports them either for the same reasons (no additional information gained by knowing the ABA supports them) or because they are Democratic partisans (definitely no additional information gained).

"Or to put it another way: sometimes truth ain't down the middle; sometimes one side is just a lot more right than the other."

This quite frankly is crap on almost all the issues I cited from the ABA. It is not a fact that 17-year olds who commit murder should not be subject to the death penalty if the death penalty is ok for 18 year olds. The ABA brings no special knowledge to that political/moral decision. It is not a fact that spanking should be outlawed. The ABA brings no special knowledge to that political/moral decision. It is not a fact that all pregnant women up to 200% of the poverty line should be covered under Medicaid. The ABA brings no special knowledge to that political/moral decision. It is not a fact that abortion should be paid for by the national government. The ABA brings no special knowledge to that political/moral decision.

On political/moral decisions in which it has no special knowledge the ABA is in lockstep with the Democratic Party. That isn't a fact about lawyers in general (they aren't in lockstep with the Democratic Party) that is a fact about the specific institution of the ABA. That isn't a fact about the US public in general. That is a fact about the specific institution of the ABA. That isn't a fact about men in general. That is a fact about the specific institution of the ABA. That isn't a fact about professionals in general. That is a fact about the specific institution of the ABA.

I'm not even sure if you were to take a random cross section of registered Democrats that you would find such a broad agreement with Democratic political positions as you do in the institutional pronouncements of the ABA. If you don't think that means anything I guess I can't say anything that would mean anything on the topic.

[keir]

"Oppose in principle capital punishment for any offense committed while under the age of eighteen."

Why would the ABA be committed to ANY position on this?

This is a position supported by all but a handful of countries in the world.

(Of course, many countries have publically committed to this, and then gone on to ignore it.)

Attacking an association of lawyers for putting forward views about the law seems slightly odd.

There may well be members of the ABA who have first hand experience with such cases, and that the ABA is drawing on those members personal experiences in drawing up this policy. I could be wrong. They may just be opposed to that barbaric practice on point of principle.