Lawyers run a muck

Tyranny of the American Bar Association

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Posted: January 12, 2008
1:00 a.m. Eastern

My study found that Clinton nominees had more than 10 times better odds of getting the ABA's highest rating than similarly credentialed Bush appointees.

In short, being nominated by Bill Clinton was a stronger positive variable than any other credential or than all other credentials put together.

– Professor James Lindgren
Northwestern University School of Law

Show me a monopoly, and I'll show you a tyranny.

– Ellis Washington ("Unpublished Thoughts," 2007)

In a prescient article on the American Bar Association, "Yes, the ABA Rankings are Biased," Northwestern University law professor James Lindgren compiled a remarkable study outlining the clear-and-present bias of the ABA against judicial nominees to the Court of Appeals and the Supreme Court, made by a Republican president, as compared to the judicial nominees of a Democrat president. The differences were so prejudiced that his findings were beyond rational argument.

Lindgren writes:

Although 62 percent of Clinton's 66 confirmed appellate nominees got the ABA's highest rating of unanimously "Well Qualified," only five of the first 11 new Bush nominees – 45% – have received the highest ABA rating, the same percentage that confirmed nominees received under the administration of the elder Bush.

At the end of the day, one nagging question remains: Why hasn't the ABA itself noticed the large political differences in its evaluative processes and worked harder to understand, explain or eliminate them? Now that there are hard data that support the claims of its critics, it would be good to see fewer denials and more introspection and reform.

This brings me to address the following questions:

1) What is the ABA?

2) Why does the ABA have so much power over law school accreditation and a 50-state mandated bar admissions requirement?

3) Why does America allow the ABA to judge the competence of the president's judicial nominees?

4) To shape and control policy over a host of law areas from constitutional law, torts, contracts, family law and trial litigation to patents, trademarks, bankruptcy, corporations and recently, environmental law?

The American Bar Association, founded 130 years ago on Aug. 21, 1878, like many associations that came of age during the Victorian and Progressive eras, did so without the president, Congress, the courts or the Constitution granting them their power. They merely assumed power.

The ABA was suppose to be a voluntary bar association of lawyers and law students, which was not specific to any jurisdiction in the United States, yet today it lords over them all. Originally, the ABA was little more than an elitist club for white upper-class males that only until very recently actively shunned women, blacks and foreigners from it's leadership ranks.

The ABA has monopolist mandates: for example, the bar exam requirement in all 50 states. It controls academic and accreditation standards for law schools, and the formulation of model ethical codes related to the legal profession. Presently, the ABA has close to a half million members (roughly 50 percent of all lawyers).

Regarding the ABA's monopolistic stranglehold over law schools, the courts and America's legal system, the government brought an Article 1 Sherman Act violation against the ABA to try to lessen the ABA's leviathan domination over all aspects of our legal system and law schools in the case: "United States of America v. American Bar Association" (D.C. 1995). Although the U.S. District Court ruled against the ABA and placed many new checks on its powers, the overall effect of this case has been business as usual.

The ABA claims that "ABA accreditation is important not only because it affects the recognition of the law schools involved, but it also impacts a graduate's ability to practice law in a particular state." However, this is circular reasoning: Who concocted the ABA in the first place and seized power over law school accreditation and academic standards? That's right, the ABA. The ABA's mandate that all 50 states require graduation from an ABA-accredited law school is an ironclad prerequisite for being allowed to sit for that state's bar exam, and even for existing lawyers to be admitted to the bar of another state upon motion. This is a monopoly. This is tryanny.

What's the purpose of going to law school, paying tens of thousands of dollars, giving up three or four years of your life, taking dozens and dozens of law school exams only to be required after graduating from law school to take another test – the bar exam? An exam that many experts have claimed for decades has no association or relevance whatsoever with what students learned in law school. Either law school or the ABA has got to go!

In my view, the ABA is a diabolical and needless layer of bureaucracy that has little to no effect in maintaining academic excellence or indicating success as a lawyer, and most people know that one of the least regarded (and most powerful) professions in America is the law profession.

Politically-speaking, the ABA is an extreme leftist, special-interest group with a strong liberal bias regarding it's philosophy, interpreting the Constitution and against giving excellent conservative appellate and Supreme Court nominees a "highly qualified" rating.

For example, the ABA gave Ronald Reagan's judicial nominees, Richard Posner and Frank H. Easterbrook, low "qualified/not qualified" ratings; later, the ABA gave Bill Clinton judicial nominees with similar resumes "well-qualified" ratings. Meanwhile, Judge Posner (a beloved mentor of mine), and Easterbrook, who took over as chief judge from Posner of the 7th Circuit in Chicago, have gone on to become the two most highly cited judges in the federal appellate judiciary.

In July 2006, an ABA task force under then-President Michael S. Greco released a report concluding that George W. Bush's use of "signing statements" violates the Constitution. These are documents attached by the president to bills he signs in which he states that he will enforce the new law only to the extent that he feels the law conforms to the Constitution.

The ABA's anti-signing statement policy shows the intellectual vacuity of the leadership of this organization and goes to the heart of my argument that the ABA should be abolished, for it has led to the downfall of our entire legal system. What unmitigated arrogance does the ABA have in thinking that it can force the president of the United States to sign and enforce laws attached to any congressional bills that he (or any rational person) knows are obviously unconstitutional?

Over the past 35 years, the ABA has also drawn criticism from numerous conservative and libertarian groups for taking positions on controversial public policy issues such as abortion, capital punishment, gun control, border enforcement, judicial activism and the limits of presidential authority. This blatant partisanship of the ABA's official non-partisian position in favor of abortion rights led to the formation of an alternative organization for lawyers – the National Lawyers Association.

In conclusion, why should the ABA be abolished? In addition to all the reasons cited above, the ABA is driving up law-tuition costs, actively creating a litigious society and is basically a needless, bloated, self-serving bureaucracy whose leadership and membership contain a bunch of self-important, shyster lawyers who in many cases aren't in the least interested in "improving the legal system for the public," but merely lust after money, power, prestige and privilege by mandating obedience to this relatively small organzition that weilds such disproportionate amount of political power by no other authority than by its own self-aggradizing decrees.

As at stated in the opening quote, any man, woman or organization that has such a comprehensive, monopolistic influence as the ABA, in my opinion is equal to a tryanny.

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Ellis Washington, former editor at The Michigan Law Review and law clerk at The Rutherford Institute, is a graduate of John Marshall Law School and a lecturer and freelance writer on constitutional law, legal history, political philosophy and critical race theory. He has written over a dozen law review articles and several books, including "The Inseparability of Law and Morality: The Constitution, Natural Law and the Rule of Law" (2002). See his law review article "Reply to Judge Richard Posner." Washington has just completed the manuscript to his latest book, "The Nuremberg Trials: Last Tragedy of the Holocaust" (2008).