Once again, ABA Watch will be reporting live from the ABA’s Midyear meetings, which are scheduled from February 8-13 in Miami. Today we offer you a preview of some of the issues the ABA will be discussing at the meeting. We will also offer excerpts from our interviews with ABA President-Elect William Neukom and former George W. Bush nominee to the U.S. Court of Appeals for the Fifth Circuit Michael Wallace.


Recommendations to be Considered by the House of Delegates

Model Code of Judicial Ethics: Recommendation 212, proposed by the Joint Commission to Evaluate the Model Code of Judicial Conduct, urges the adoption of the revised Model Code of Judicial Conduct, dated February 2007. Among the proposed changes:


Newly revised Canon 1 combines the previous Canons 1 and 2, “placing at the forefront of the document the judge’s duties to uphold the independence, integrity, and impartiality of the judiciary, to avoid impropriety and its appearance, and to avoid abusing the prestige of judicial office.”

Rule 2.10 or Canon 2, concerning judicial statements on pending and impending cases, declares “A judge shall not, in connection with cases, controversies, or issues that are likely to come before the court, make pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office.”

Canon 3 bars judges from belonging to groups that discriminate based on gender, ethnicity, and sexual orientation. Previously, judges were only barred from groups that banned members based on race, sex, religion, or national origin. The comments outline what determines whether a group’s policies constitute “invidious discrimination.” These factors include “whether the organization is ‘dedicated to the preservation of religious, ethnic, or cultural values of legitimate common interest to its members,’ and whether it is an ‘intimate, purely private organization' whose membership limitations could not constitutionally be prohibited.’” Groups like the Boy Scouts would not fall under the purview of this Canon.

Rule 3.14 of Canon 3 addresses travel reimbursements for judges who participate in privately funded judicial seminars. According to the report, “A judge may accept reimbursement of necessary and reasonable expenses for travel, food, lodging, or other incidental expenses.” The comments emphasize, “Judges are encouraged to attend educational programs, as both teachers and participants, in law-related and academic disciplines, in furtherance of their duty to remain competent in the law.” However, judges must make a “reasonable inquiry” to make an “informed judgment” about their participation in such programs. This inquiry should consider whether the purpose of the seminar is educational or recreational, whether content will consider a subject pending before the judge, whether differing viewpoints are considered, whether funding information is available, and the make-up of the audience.

Newly revised Canon 4 discusses campaign activities, recommending that “A judge or candidate for judicial office shall not engage in political or campaign activity that is inconsistent with the independence, integrity, or impartiality of the judiciary.” According to the report, “The Joint Commission has sought to find a balance that accommodates the political realities of judicial selection and election while ensuring that the concepts of judicial independence, integrity, and impartiality are not undermined by the participation of judges and judicial candidates in political activity.” The Commission recommends that judicial candidates be prohibited from “personally solicit[ing] or accept[ing] campaign contributions other than through an authorized campaign committee.” Furthermore, in nonpartisan or retention elections, a candidate is prohibited “from seeking, accepting, or using nominations or endorsements from a partisan political organization.” Candidates also cannot identify themselves as members of a political party in these kinds of elections.


Prison Litigation Reform Act: Recommendation 102B, sponsored by the ABA Criminal Justice Section, “urges federal, state, local, territorial, and tribal governments to ensure that prisoners are afforded meaningful access to the judicial process to vindicate their constitutional and other legal rights and are subject to procedures applicable to the general public when bringing lawsuits.”


Goal IX: Recommendation 115, proposed by the Individual Rights and Responsibilities Section, seeks to amend the ABA’s Goal IX to include the language: “To promote full and equal participation in the legal profession by minorities, women, persons with disabilities, and persons of different sexual orientations and gender identities.” The Section seeks the amendment because “the ABA has recognized that lesbian, gay, bisexual, and transgender people face pervasive discrimination in all aspects of life, including within the legal profession.” The Section declares it is “particularly important” to extend Goal IX “not only to further the ABA’s diversity commitment, but also because persons still receive little statutory protection from discriminatory employment practices.” The recommendation’s accompanying report quotes from a number of bar studies conducted over the past fifteen years purporting that prejudice and harassment based on sexual orientation and gender identity is “pervasive” in the legal profession.


Apology Legislation: Recommendation 112, sponsored by The Standing Committee on Medical Professional Liability and the Section of Tort Trial and Insurance Practice, “supports enactment of apology legislation at the state and territorial level relating to the pain, suffering, or death of a person.” It would provide that “certain apologies...as the result of unanticipated outcomes of medical care shall be inadmissible as evidence of an admission of liability or as evidence of an admission against interest for any purpose in a civil action for medical malpractice.”


Homelessness: Recommendation 106, offered by the Commission on Homelessness and Poverty and the Commission on Mental and Physical Disability Law, opposes policies and laws that “punish persons experiencing homelessness for carrying out otherwise non-criminal, life-sustaining practices or acts in public spaces, such as eating, sitting, sleeping, or camping, when no alternative private spaces are available; and are enforced against persons experiencing homelessness to a greater extent than others who are engaged in the same practice or act.” The recommendation also opposes punishing individuals who provide food or shelter to the homeless.


The recommendation’s accompanying report discusses the rising homeless problem and the “unfortunate trend” of the “criminalization of homelessness.” According to the sponsors, these laws “do not make sense” from a public policy standpoint. The laws force the homeless away from getting public assistance and outreach. They would also result in more homeless individuals having criminal records, making it more difficult to obtain housing and employment. Finally, the sponsors maintain that it would be more cost-efficient to provide services rather than incarceration for the homeless.


Gun Control: Recommendation 107, sponsored by the ABA Special Committee on Gun Violence, “supports the traditional property rights of private employers and other private property owners to exclude from the workplace and other private property, persons in possession of firearms or other weapons and opposes federal, state, territorial, and local legislation that abrogates those rights.”


Preview of Interview with ABA President-Elect William Neukom

ABA Watch traditionally interviews the ABA President-Elect in its February issue. This year, we will be interviewing former Microsoft General Counsel William Neukom, who will assume the ABA presidency in August at the ABA Annual Meeting. Unfortunately, Mr. Neukom's responses were received past our deadline, and we are unable to print his responses in our issue. However, we are pleased to provide you the interview online. What follows is a preview:

QUESTION: The ABA has spoken out against a federal marriage amendment. The ABA urges the amendment’s rejection, as passage would be an attempt to use the constitutional amendment process to impose upon the states a particular moral viewpoint about a controversial issue. The ABA’s current position, therefore, is that each state should establish its own laws regarding civil marriage—an argument on federalism grounds. Yet in other areas concerning public policies where moral viewpoints come into play, such as abortion, the ABA supports federal legislation. How has the ABA tried to reconcile or distinguish these positions?


ANSWER: ABA entities recommend policy on issues important to the public and the profession as they become relevant in public discourse. The House of Delegates then debates the merits according to the context in which each issue comes up, and they weigh different considerations on a case-by-case basis. In some cases, the debate might reveal that a principle like federalism should govern, and in other contexts, debate might make clear that other considerations, such as public health issues, make it important to have a national law.


To take two issues you cited, the ABA's position on the federal marriage amendment is based on more than 200 years of jurisprudence that marriage be regulated by each state. The ABA's House of Delegates supported the concept that regulation of marriage should continue to be determined at the state level and that it is not an issue in which the federal government should be involved. The ABA has consistently, and for the same reasons, maintained that tort liability issues are, and should remain, state and not federal issues.


When the House of Delegates voted to support the Supreme Court’s decision in Roe v. Wade, it was affirming that there is a constitutionally protected right to privacy, including a woman’s right to choose.


Because it is a federal and constitutionally protected right, no state or federal law can now abridge that right. Therefore, the ABA opposes any state or federal legislation that restricts that right, as it is now interpreted by the U.S. Supreme Court.


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Interview with Michael Wallace

Michael Wallace, then of Phelps Dunbar and currently of Wise, Carter, Child & Caraway, was nominated by President George W. Bush to the United States Court of Appeals for the Fifth Circuit on February 8, 2006. The American Bar Association’s Standing Committee on Federal Judiciary, which rates judicial candidates post-nomination, bestowed Wallace with a unanimous “not qualified” rating. Some critics of the Standing Committee speculated that Wallace received this rating because of his past contentious relationship with both current ABA President Michael Greco and the Association over several Legal Services Corporation (LSC) issues, as Wallace served as an LSC board member from 1984-90. In September, Wallace received a hearing before the United States Senate Judiciary Committee, with several members of the ABA testifying. On December 26, Wallace asked President Bush to withdraw his nomination.

ABA Watch conducted an interview with Wallace about his experiences being vetted by the ABA Committee. For the full interview, see the February 2007 issue of ABA Watch.


QUESTION: What are some of your observations about the vetting process by the ABA Standing Committee on Federal Judiciary, as well as the interview you underwent.


ANSWER: I underwent, not one interview, but five interviews by the ABA. Not until its submission of written answers after my hearing before the Senate Judiciary Committee did the ABA make clear that it had taken into consideration the investigation it conducted in 1992, when President George H. W. Bush had selected me for a vacancy on the Fifth Circuit; that investigation was cut short by the results of the 1992 election. The ABA apparently considered the two interviews it conducted with me in 1992, as well as the anonymous interviews it conducted with others at that time, notwithstanding assurances I received from the initial investigator in 2006 that charges raised against me in 1992 were no longer an issue in 2006. Certainly, the ABA never informed either me or the Senate Judiciary Committee that it had considered evidence more than 14 years old until after I had concluded my own testimony before the Committee.