The American Bar Association has been making headlines recently regarding its position on the SCOTUS nomination process. I question the ABA’s role in any political process. The issue is whether the ABA should be taking positions relative to the political process or should it leave that to its individual members.
Specifically, the ABA gave Brett Kavanaugh its highest rating, “well qualified”, which under the circumstances could easily have been interpreted as an endorsement of his nomination. [The ABA just announced publicly that it is reconsidering that rating based on the events of the last two weeks which is another problem]. When all of the accusations surfaced about alleged sexual abuse and drinking, the president of the ABA, Robert Carlson wrote a letter to Senators Grassley and Feinstein urging them to delay voting on the nomination and recommending an FBI investigation. There have been questions raised whether this was Carlson’s personal opinion or an official act of the ABA. In either event, the letter was written on ABA letterhead and appeared to be an official request of the ABA.
The ABA is a voluntary national association of lawyers. I am a member. The mission of the ABA is (1) serve its members, (2) improve the legal profession, (3) eliminate bias and enhance diversity, and (4) advance the rule of law. The ABA claims that it is the national representative of the legal profession. My question is whether the ABA should be taking positions on political issues in the public eye.
When the ABA recommended that Congress delay a vote on a SCOTUS nominee, it thrust itself squarely into the national political debate being played out in the Court of Public Opinion. My own personal opinions about the political process in this particular case and whether proceedings should be delayed are diametrically opposed to the ABA’s position. It states that “the basic principles that underscores the Senate’s constitutional duty of advice and consent on federal judicial nominees require nothing less than a careful examination of the accusations and the facts by the FBI”.
It is troubling that not only is this statement debatable, at best it is only an unsolicited and unwanted opinion. At worst, it is potentially unethical. This is the problem that can result when lawyers unilaterally insert themselves in non-legal or quasi-legal political matters. My question is whether legal organizations purporting to be national representatives of lawyers should take an unsolicited stance on political issues. I think not.
One can imagine this being followed to an extreme. What if the ABA should write a letter to SCOTUS recommending that it rule a certain way? What if the ABA should write a letter to the DNC saying that a Republican should be elected? What if the ABA should write a letter to a presiding judge recommending that a lawsuit be dismissed? We are not talking about writing an AMICUS brief, I am talking about the ABA inserting itself in a process in a manner that is totally inappropriate.
The ABA has adopted Business conduct standards which states:“[i]t is of particular importance that every individual working on ABA business — whether a member, employee, or contractor – lead by example by adhering to the highest ethical and legal standards and by demonstrating integrity, professionalism and respect for others and the law in all their actions.”
In taking a position which is none of the ABA’s business in a national, highly partisan forum, does this rise to the “highest ethical and legal standards”?