The American Bar Association describes itself as "the national representative of the legal profession." Much as the ABA may wish that were so, it is most certainly not the case. Although laymen no doubt believe that the ABA represents the views of most lawyers, in reality over the years it has devolved to nothing more than a special interest group that seeks to impose its ideology on lawyers. The truth is that the ABA represents only a small fraction of lawyers nationwide, and no doubt many of those who do belong to the group are simply "hoodwinked by the pedigree of the ABA."
Not Representative of the Nation's Lawyers
The ABA reports that, in 2016, there are approximately 1.3 million lawyers nationwide. And while the ABA claims to have 417,000 members, only about half (220,000) actually pay dues. The ABA Executive Director reports that its "number of dues-paying members has gone down every year for the last 10 years." What's more, membership in the ABA is not limited to the legal profession, and the organization does not reveal how many of its members are actually lawyers. In any event, even with ABA "padding its stats," it is safe to say that fewer than 17 percent of the nation's lawyers are actually dues-paying members of the ABA. Compare that to 1977, when about 50 percent of lawyers belonged to the ABA.
And even when it comes to representing actual, dues-paying lawyers, the ABA reportedly does a poor job. Discussing the ABA's carefully guarded $300 million nest egg, one critic noted that "it does make me wonder if they repurposed half of [their investments], what they could do for their members. ... Nonprofits are supposed to exist for the common good of their members. ... They seem to be more concerned about the perpetuity of the ABA than their members." So what we are left with is an organization supported by only a fraction of the nation's lawyers, and which apparently is more concerned about its own agenda than the members whose interests it purports to represent.
The ABA: Left Wing to the Core
In 1989, the ABA voted to amend centuries of proper use of the English language to use "gender neutral language" "in all documents establishing policy and procedure." In 1992, the ABA voted by a 2 to 1 margin to support a "woman's right to choose" to kill her baby. In 1997, the ABA called for a moratorium on the death penalty across the nation. In the same years, "the ABA has endorsed funding for the National Endowment for the Arts (with no restrictions); endorsed single-payer, Canadian-style health care plans (and later, as a fall-back position, the Clinton health care plan); endorsed the most extreme forms of racial set-asides; and opposed almost every element of the Contract With America that they considered."
One need only look at the ABA website to see the names of its various Committees, Commissions, and Centers to get a sense of its extreme liberal slant. For example — "Gun Violence," "Center for Human Rights," "Center for Racial and Ethnic Diversity," "Commission on Racial and Ethnic Diversity in the Profession," and "Commission on Sexual Orientation and Gender Identity" — just to name a few. The ABA has taken positions that are broadly:
- Anti Gun
- Anti Right-To-Work
- Anti Death Penalty
- Pro Abortion
- Unconcerned about Voter Fraud
- Pro So-Called "Equal Pay"
- Pro Climate Change/Global Warming Legislation
- Pro Legal Services Corporation funding
It would appear that just about the only liberal issue on which the ABA hasn't (yet) taken an official position is raising the minimum wage.
This ideological extremism would not be as big of a problem, of course, if the ABA were like many other large nonprofits, concerned only with advocating for a certain cause. But unlike other large nonprofits, the ABA wields mighty and terrifying quasi-governmental power at both the federal and state levels.
Pre-screening Federal Judges
If you think the modern federal judiciary has become top heavy with leftist lawyers, you can thank the ABA. For many years, the ABA had a formal role with the White House in "prescreening" judicial nominees before they are announced to the public and considered by the Senate. In this way, the ABA enjoyed "a de facto veto power" over federal judicial nominees. Some studies had found that the ABA was far more likely to give far higher ratings to some groups of liberal-slanted appointees than to conservative-leaning ones, and that this had a large effect on the Senate confirmation process.
Recognizing the ABA's leftist political agenda, in 2001, the George W. Bush administration eliminated the ABA from its formal role of "pre-screening" judicial candidates before their nominations are made public and before Senate confirmation hearings. One would think that if the ABA were truly a nonpartisan organization, any president would want the organization's approval of his judicial appointees. The fact that the ABA's role was eliminated goes a long way to show just how deeply politicized the ABA has become. However, in 2009, unsurprisingly, the Obama Administration reinstated the ABA to its prior role.
Accrediting Law Schools
Second, the ABA has positioned itself (and its agenda) at the very gateway into the legal profession, holding the power over the accreditation of law schools. Such has been the case for decades. Almost every state requires a person to have studied law at an ABA-accredited law school as a condition to take the state bar examination, without which it is illegal to practice law. And, of course, the ABA gets to set the standards by which it will accredit a law school — requiring it to toe the ABA political line.
Until the early 1980's, no law school was eligible to be accredited if the school discriminated on the basis of religion. For example, a law school at a Catholic University like Notre Dame could not hire only Catholic faculty or admit only Catholic students. In 1981, the O. W. Coburn School of Law at Oral Roberts University finally broke the ABA's iron grip, securing a federal court injunction blocking the ABA from enforcing its anti-religion policy. The ABA never appealed that ruling. Instead, it simply changed its rule to "accommodate" schools with a religious mission. With the passage of its new rule on discrimination, the ABA no doubt will continue in its ongoing attempts to require all law schools to conform to the "LGBTQ" political agenda, despite the conflict between that secular agenda and the religious missions of certain religious-based law schools.
Defining Ethical Rules
Lastly, the ABA wields vast power over the nation's legal profession through its so-called "Model Rules of Professional Conduct." For many decades, the ABA's model rules have been widely respected in the legal community and widely adopted by the nation's state bar associations which wield regulatory and disciplinary power over the nation's lawyers. That is no doubt because for many years the model rules were largely unchanged, at least in their substance, since the principles they protect are for the most part timeless.
Unfortunately, that is no longer the case. In recent years, the ABA has gotten off the professional track and onto the political track. Rather than focusing on protecting the ethics of the legal profession, the ABA has evolved into an organization bent on forcibly imposing a new social order on the nation's legal profession, "tak[ing] public and generally liberal positions on all sorts of divisive issues." Of course, the law is not supposed to be divisive, nor is it supposed to be political.
In its annual meeting to take place in San Francisco on August 4-9, 2016, the American Bar Association will consider whether to adopt a change to one of its Model Rules of Professional Conduct re-defining lawyer "Misconduct" to prohibit discrimination against a slew of broad new "classes" of people around which the left organizes politically.
So far, the state bar associations have largely played along with the ABA, many of them blindly adopting new ABA proposed rules like lemmings. This permits the ABA to further its progressive, left-wing agenda, with its radical policies implemented directly against the nation's legal profession, and backed by the force of law.
And the pressure will only increase if the ABA adopts the new professional ethics rule, prohibiting whatever the governing elite might deem to be "discrimination" or "harassment" against 11 preferred classes of persons. Indeed, by including religion as a forbidden discriminatory category, its adoption could initiate a new era of bigotry against lawyers who embrace traditional values, as well as law schools founded upon religious precepts.
Robert J. Olson obtained his undergraduate degree from the College of William and Mary and his law degree from George Mason University School of Law. Herb Titus taught constitutional law for 26 years, concluding his academic career as founding dean of Regent Law School. They now practice constitutional law together, defending against government excess, at William J. Olson, P.C., Vienna, Virginia. E-mail firstname.lastname@example.org, visit www.lawandfreedom.com, or follow on www.Twitter.com/OlsonLaw. The U.S. Justice Foundation, 932 D Street Suite 2, Ramona, CA 92065 was founded in 1979. www.usjf.net.