Judging the ABA

This from my friend Josh Blackman nails the problem with the American Bar Association and judicial nominations, which, while not a new one, has — like everything else in America where law and politics intersect — taken a brazen, over-the-top turn lately:

It’s sad for me, though I am over it. Not just the ABA’s problem with vetting judicial nominees: Its overall decline. It’s sad because the ABA has a sort of interesting place in my legal life.

Like most lawyers my age, I was a member of the American Bar Association at the beginning of my legal career. Before it, even; I obediently joined the Law Student Division upon my enrollment in law school. More than this: I ended up as a contributing member of the Division’s Student Lawyer magazine during my first year and remained on the masthead for about five years. I also contributed pieces for the Young Lawyers Division’s old Barrister magazine and even the ABA Journal. If fact I ended up as the “primary” author of a couple of ABA books on law aimed at the general public. I was tight with the ABA!

All these grand achievements were facilitated by the fact that my law school was a next-door neighbor with the ABA, which then had its headquarters in what was, in the mid-1980’s, a new office tower adjacent to Northwestern’s law school at the end of Chicago Avenue at 750 North Lake Shore Drive. So I was in and out of their all the time because of my relationship with the Publications department, and because it was, in the pre-Internet day, a lot more fun to hang out at the ABA, where I had my own desk and typewriter, than to go to the library, where I didn’t.

Even then, not long after my time in law school was over I had already quit the ABA.

It was in 1990, when the ABA first took an organizational position on abortion, deeming unrestricted abortion the only ethical position a lawyer could take on the matter. I was never all that involved in the abortion issue, or even engaged with it. At the time I was less engaged with it than I am now, and even now it’s not that much. But what the ABA did was an obviously heavy-handed, political and partisan choice, and I was not interested in being part of it.

I wasn’t alone. So many lawyers quit the ABA over that resolution, or threatened to, that it pulled back within months. And I dutifully re-joined, believing that the organization had learned a lesson and conducted itself admirably by accepting the concept that there are moral issues concerning which reasonable lawyers could disagree.

I was wrong. Abortion activists regrouped, and in 1992 they switched the ABA back to an abortion-advocacy position. And I was gone, for good, along with thousands of others. Of course, by doing so we surrendered the organization entirely to political advocates who wanted to use the ABA as a vehicle for positions we opposed, and it got worse.

It got a lot worse, from my point of view. And that of many others. Could that be related to the reason so few lawyers are ABA members?

You already know that lawyers don’t have to be in the ABA (or, unless they live in unitary bar states, any bar association). But did you know just how few are?

The association has lost about 56,000 dues-paying lawyers in the last 10 years, according to the ABA , and currently fewer than 200,000 members actually pay dues. The ABA’s total membership is expected to be above 400,000 for fiscal 2018. There are some 1.3 million lawyers in America, the ABA says.The board of governors was told in June that membership shrank about 4 percent from 2017 to 2018, resulting in about $1.5 million in lost revenue. Without changes to its dues structure, the ABA projects it will generate about $15 million less in annual dues by 2024, according to a June memo from the ABA’s Standing Committee on Membership. . . .

ABA executive director Jack Rives compared the association to a single home that withstood Hurricane Ike in 2008 because its owners planned ahead and built the home on 19-foot stilts. He said the ABA’s finances were not facing a coming storm because, “the storm is already here.”“The question is: Do we have the courage to make the tough decisions that will enable us to weather the storm?” Rives said. “My commitment to you is we will not merely survive; we will thrive. We are truly at an inflection point for the profession and our association.” Rives said the association would need to do more than simply revamp its fees in order to attract new members and to be financially healthy. Toward that latter point, Rives said the ABA’s general budget has decreased $25 million since 2014—a 22 percent reduction. This year, the association also laid off 50 employees and now has fewer staff members than at any point since 1996, Rives said.“We know we have issues. We know there are problems. We have studied these; analyzed these; and we know we have solutions,”

ABA to Slash Dues Amid Membership Drop,” Daily Business Review, August 2018
Frieze, 111 Centre Street

Does the ABA know the solutions, as Rives says it does? It certainly doesn’t look that way from this article full of similarly gauzy quotes from ABA grandees, written a couple of months earlier:

ABA President Hilarie Bass urged House leadership to make tough decisions when they are asked to do so, likely at the ABA’s Annual Meeting in Chicago when the association celebrates its 140th anniversary.

During her travels throughout the U.S. and around the world in her first six months in office, Bass said she’s become aware of the power of the ABA to influence and effect change. She’s also been made keenly aware that the ABA’s “power can only be as strong as our organization itself.”

Bass said the House, which sets policy for the ABA, needs to “recognize that the association needs to evolve and adapt to the changing needs of the profession and its lawyers.”

“Whether that means modifications to our dues structure, our section structure or our administrative structure, we cannot stand idly by and expect that our association will continue to thrive and grow utilizing the same framework of operations that have been in place for decades,” she said.

When delegates are presented with proposed changes, Bass urged them not to nitpick and take the recommendations personally.

“No one likes change. But as servant leaders, we must listen to the needs of our members and non-members.”

And she implored, the changes must be made in order for the association to maintain the power to do its work.

“We must all commit in advance to remind ourselves that everyone involved in this process is moving forward in good faith with one goal in mind, to insure that our association is here in another 140 years to continue its great work.”

“Needs to evolve and adapt … listen to the needs … ” Weasel words from our “servant leader”: Not a single actual problem is identified in these articles. And there are plenty to talk about. Obviously conservatives’ displeasure with the ABA’s hacking up the judicial selection business is not the be-all and end-all; this Above the Law post by Steven Chung rightfully decries the Association’s virtual irrelevance for, and lack of genuine usefulness too, smaller firms. This Mark Cohen article, “Is the American Bar Association Passé?,” also from last year, in Forbes lists a number of problems, though I found these successive passages to be a little inconsistent:

I can’t understand the juxtaposition of these two arguments. If the ABA is failing by insisting on “lawyer exceptionalism,” how can it be taken to task for not giving a hoot about how the cash-cow law schools are doing their job, especially regarding student achievement and skills development. It’s got to be one or the other: if legal education and licensing matter, then, yes, let’s whip the law schools into shape and close down a bunch of them. If, on the other hand, these are old-fashioned concepts unfit for the do-it-yourself era, what’s the difference?

Greene County NY courthouse

The biggest reason for the ABA’s decline . . . is the organization’s support of the legal guild. The ABA has failed to use its clout to revise provincial, anachronistic, and protectionist regulations that fail to serve those in need of legal services, existing legal consumers, and society. The current regulatory framework it has doggedly sought to preserve perpetuates the myth of lawyer exceptionalism by separating the world into “lawyers and ‘non-lawyers.’” . . .

The ABA’s influence has also been diluted by its lax enforcement of law school accreditation and a reticence to advance all-in legal education and training reform. Two years ago, the ABA was called to task for its failings. The National Advisory Committee on Institutional Quality and Integrity (NACIQI), a branch of the Department of Education, rebuked the ABA for its lack of attention to student achievement as well as a range of other deficiencies. The NACIQI chronicled findings that have dogged the ABA and law schools for years– skyrocketing tuitions, enrollment of students despite an expected inability to pass the bar, misleading job statistics, and massive student debt. Paul LeBlanc, a member of the NACIQI, described the ABA as being “out of touch with the profession.”

Familiar themes. But Cohen’s article continues:

The ABA’s decline can also be explained by its failure to adhere to the core goals of its Mission Statement: (1) serve members; (2) improve the profession; (3) eliminate bias and advance diversity; and (4) advance the rule of law. Members are obviously not being served—their ranks once constituted half of all licensed U.S. attorneys and now the percentage is less than 25%. The legal profession’s image is eroding; lawyers were recently ranked among the least trusted of all vocations. Meanwhile, the legal profession has sky-high rates of divorce, suicide, alcohol and drug abuse, stress-related illness, and job dissatisfaction. Notwithstanding its efforts to advance diversity and equal opportunity, the ABA presides over a profession that has a glass house problem. Female attorneys still are not paid the same as males, minority attorneys do not represent a proportionate share of senior positions, and the poorest law students – often minorities- are bearing the heaviest burden of law school debt.

His first point — that ABA “core goal” (1), serving members, is not being met because membership is low befuddles me. Serving members means serving members, not serving non-members. Declining membership is not a “failure to adhere” to a goal of serving members — unless the argument is that members have quit because they were not being served. He does not make that argument.

“Improving the profession,” goal (2), is certainly vague enough, and here Cohen’s criticism is unfair; obviously lots of good work is done by the ABA, especially at the Section level. And the facts that people don’t respect lawyers and that lawyers are miserable do not demonstrate that the ABA has “failed to adhere” to the goal of making the profession better. It has either failed to achieve that goal … or, its efforts have had no effect on that goal … or, perhaps, the ABA’s work has, through its work, preventing things not remotely within its control from being a lot worse. The Forbes article is hardly a paragon of Socratic reasoning.

Ocean County courthouse and justice center

As to (3), eliminating bias and diversity, meh. Bias is bad; no one at the ABA is promoting it; far from it. And, frankly, diversity is by all indications more or less the main thing the ABA, and other bar and professional associations and most law firms, talk about. It is a mistake not to acknowledge the progress on this front if indeed you consider diversity a free-floating social goal, as, of course, the ABA does. It’s far from clear that a bar association could possibly do more than the ABA and other bar organizations have done about this, either, and Cohen certainly does not demonstrate that they could even if you share his view that they should.

What Cohen doesn’t acknowledge, though, along with everyone else quoted above, is what is almost certainly a key reason for the decline of the ABA: Like so many organizations founded in the previous century or earlier in America to promote goals every good and decent person could agree on — ending discrimination, guarding civil rights, promoting professionalism, associating trademarks — have become victims of their own successes. Having, at least in the main, achieved their central goals to an extent undreamed of by their founders, they then proceed to cast about for continued reasons to continuing to exist, to raise funds and to employ their staffs. And, not unrelatedly, they have almost all been coopted by political agendas having little to do with their original missions.

This post has already gone on too long, so I won’t go off on a tangent that I haven’t already gone off on about once-proud organizations such as the American Civil Liberties Union and the Anti-Defamation League, and once-tolerable (depending on whom you ask) organizations such as the Southern Poverty Law Center, morphing into permanent 501(c)(3) operations serving the fringes of one political party and generating increasingly “nuanced” (and dishonest) assessments of why they and your tax-free donations are needed MORE THAN EVER.

But I will swerve back into the lane I started in and say that this is what has happened to the ABA. And none of the concern trolls writing about its demise will acknowledge it, much less confront it — demonstrating that they are very much part of the problem.

At every juncture, the ABA seems to have cut corners. It apparently failed to ask VanDyke’s supporters to respond to charges against him. The letter may have mischaracterized VanDyke’s statements. And the investigation was led by a conflicted person who did not even appoint a second person to interview the nominee. The process was flawed from the outset, and should not be afforded any deference. Even if Davenport testifies, and justifies her actions, the damage has already been done—not to VanDyke, but to the ABA. This letter demonstrates that the organization can no longer be trusted to perform a fair assessment of nominees. (William Hubbard, chairman of the ABA committee that conducts judiciary-nominee evaluations, said in a statement, “The evaluations are narrowly focused, nonpartisan, and structured to assure a fair and impartial process.”)

Sure, Mr. Hubbard. We’ve heard this before.

And for the ABA, that problem becomes most obvious, and by the grace of God gets our attention, however briefly, when the ABA embarrasses itself on judicial nominations. It did so fabulously during the Kavanaugh hearings, and has just done so again concerning the Van Dyke nomination. From the Blackman article:

Let me end by revisiting a small quote from one of the long passages set out above in which an ABA pooh-bah encapsulates how the organization sees its problem:

Marble staircase, U.S. Supreme Court

ABA President Hilarie Bass urged House leadership to make tough decisions when they are asked to do so, likely at the ABA’s Annual Meeting in Chicago when the association celebrates its 140th anniversary. . . .

She’s also been made keenly aware that the ABA’s “power can only be as strong as our organization itself.” . . .

“No one likes change. But as servant leaders, we must listen to the needs of our members and non-members.” …

And she implored, the changes must be made in order for the association to maintain the power to do its work.

Power, power, power.

Like most people and institutions, advocacy organizations like to have power; they don’t like to give it up; they claim it in the names of their noble goals and those they serve / lead; and those with the … skills and patience necessary to rise to the top of such organizations do so, ever reluctantly, by knowing it well.

The ABA’s role in the judicial nomination and vetting process has, for generations, one of its most acute exercises of power. But what Ms. Bass fails to acknowledge is that the true test of power is not merely (if it is at all) the strength “of [her] organization itself,” but rather the ability to exercise it freely — free of review, free of disclosure, free of accountability.

And nothing better demonstrates such a proud and free assertion of power, real or imagined, than arrogant utterances such as the one quote above in the name of Prince William Hubbard and, before him, Baron Paul Moxley. No accountability is deemed owed to the Senate Judiciary Committee. None to the public. Not even to its own dues-paying rank and file members. Such arrogance by those empowered by the ABA to give professional life or to destroy it gives the lie to the ABA leadership’s well-publicized 2018 announcements of determination to remove the foreskins that separate it from members — and non-members! — alike, or even to their claims to actually care about the death-spiral of the ABA’s membership count. It is either inconceivable to the ABA’s membership that among the tens of ex-members it wants to woo back and never-been-members it wants to recruit, some just may not see the benefit in being part of, much less contributing to, such an abuse of power.

In fact, the members are not the thing at all. The articles I have cited above make it clear that the concern of the ABA’s elite is not with being representative of the American bar, but are entirely of a budgetary nature. How are we going to pay for all this servant leading?

For the ABA, like most national organizations of its kind, has evolved to serve the preferences of those at the organization’s power nodes who are at once most activist and least professional. They serve as well as those not directly involved in those activities as members but who benefit from them politically or otherwise — and who can reward such activism in ways that do nothing to promote the interests of the vast majority of dues-paying members or even the most modern enunciation of the organization’s aspirational goals.

For an organization built of and for lawyers, whose aspirational goals are notionally allied with an enhanced commitment to public service, the rule of law and, if anything, old-fashioned concepts considered inimical to the practice of law such as honesty, procedural fairness, transparency and intellectual integrity, the ABA’s unintended but inevitable reveal at moments such as this is a disaster — morally, and, well, in terms of getting dues revenues back up.

The last word, almost, to Josh Blackman again:

As originally designed, the confidential nature of this process made some sense. The interviews were not recorded to ensure that members of the bar could candidly critique a potential jurist, and to prevent the nominee from facing public embarrassment if the report was released. But the VanDyke letter turns that practice on its head. He was sandbagged at the last minute, and he was not given a chance to address any of the accusations it contained. This wound was entirely self-inflicted. If the ABA wanted to rate a nominee like VanDyke as unqualified, the organization should have followed its own rules to a T. Instead, it ran a slipshod process, led by a person whose objectivity was open to question.

This process should no longer be a black box. If reports faithfully reflect the interviews, faith can be restored in the ABA. If the process remains shrouded in secrecy, Americans can safely discount future findings.

We can. We will. And, sad as it is to the hard-working professionals in an organization I once called home, and as unfortunate as it is to the extent the ABA’s decline will affect the professional lives of thousands of member lawyers who learn from and teach the law to each other through the ABA’s sections and publications, and notwithstanding all the good programming that is relatively apolitical and frequently of the highest order in terms of professionalism, the ABA is unlikely to reform or even to be replaced.

Measured by its asserted role in American life and law, the ABA today is simply not qualified.

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