President Donald Trump’s rhetoric and actions continue to test the American Bar Association as it pursues its core goals, which include upholding the rule of law, enhancing diversity and eliminating bias.
Although the nonpartisan ABA has addressed some of the administration’s actions this year, some observers would like to see the 400,000-member professional organization become more vocal in speaking out when the president’s statements and policies appear at odds with ABA principles.
But Hilarie Bass, who became the ABA’s new president on Aug. 15, said the ABA is a nonpartisan organization, “so we focus on policy and not politicians.”
The organization reacts to policy “rather than getting involved in criticizing a president,” said Bass, a Greenberg Traurig co-president.
Most recently, Trump appeared to spread blame between white nationalists and counterprotesters in Charlottesville, Virginia, first on Aug. 12 and then on Aug. 15.
On these issues and others, Trump’s comments and policies have attracted criticism from lawyers and legal scholars along the political spectrum.
But the ABA House of Delegates, the ABA’s policymaking body, met in New York this month without having addressed these issues in its August resolutions. Nor did the group’s past president, Linda Klein, issue a statement this year explicitly touching on them by the time the conference concluded Aug. 15.
On Thursday, after ALM inquired about the ABA’s positions on Trump’s comments and conduct in office, Bass issued a release stating that the ABA “stands dedicated to the principles of equality and justice in our country and denounces those who attempt to subvert those values.”
“The ABA has numerous policies supporting equality and nondiscrimination in the workplace, throughout the justice system and in society. In fact, one of the ABA’s four main goals is to ‘Eliminate Bias and Enhance Diversity,’” the statement said. “The ABA believes it is our patriotic duty as Americans to stand up to bigotry, to speak out against hate, racism and anti-Semitism whenever and wherever it appears, and to support the rule of law. The ABA stands ready to declare loudly and clearly: American values of diversity, inclusion and equality will be celebrated and protected.”
In an interview Thursday morning, Bass defended the ABA’s responses on these issues and cited the ABA’s work on related topics, including through court amicus briefs, official statements and House of Delegates resolutions. “We speak out all the time on rule-of-law issues,” she said.
She also pointed to an Aug. 13 statement by Klein, a shareholder at Baker, Donelson, Bearman, Caldwell & Berkowitz who decried the violence in Charlottesville. Klein said “the ABA knows the principles that govern our country—respect for the rule of law, tolerance for the beliefs and freedoms of others, and a deep dedication to uphold the Constitution—are strong and will prevail over the forces of hate and racism.”
Bass and Klein’s statements did not directly address Trump’s remarks that equated neo-Nazi groups with counterprotesters. Indeed, in its presidential statements in 2017, the organization has rarely, if ever, referred to the president by name.
“We’re not standing against the administration,” Bass said. “We’re standing against the policies that are against our principles.”
Bass said the fact that ABA members have many issues to engage in is an opportunity. “There’s nothing partisan about standing up for constitutional principles,” she said.
Still, sometimes the ABA’s opposition to the administration’s stance has been very clear.
Bass noted several measures the ABA has taken this year related to its policy positions,
including filing an amicus brief
to a federal appeals court on transgender discrimination in school facilities, and resolutions on immigrant rights and criminal defense.
During its annual meeting this month, the House of Delegates passed a resolution urging licensing groups to admit undocumented law school graduates if they are seeking legal status. It approved resolutions opposing mandatory minimum sentencing; favoring bail reform to prevent punitive measures on those who cannot afford to pay court fines; and urging governments to prohibit solitary confinement of juveniles.
“The American Bar Association has really led the effort on criminal justice reform,” Bass said.
“Any time there is a challenge to democratic principles, it is all the more important for an association like the American Bar Association to stand up,” Bass said. “We continue to be laser focused on constitutional principles.”
To the extent the president appears to oppose those principles, she said, the ABA will continue to speak out as it has in the past.
A Debate Over ‘Doing More’
Whether the ABA, which describes itself as the “national representative of the legal profession,” should be more vocal about targeting a politician whose administration’s policies undermines its stated goals is a matter of mixed debate.
“Bar associations have sometimes gotten in trouble when they have taken political positions and I think the rule of law is to be above any individual person,” said Roy Simon, of Hofstra University School of Law.
“In the short run, there’s a lot of satisfaction to essentially saying ‘Trump is wrong,’ or ‘Trump is an idiot.’ But in the long run, I think you have to keep a broader range of lawyers engaged in the bar association,” a group that is not free nor required, Simon added. “Bar associations are more effective when they are united.”
Others see some missed opportunities.
Leslie Levin, a University of Connecticut School of Law professor who writes on the legal profession, said, “I would like to see them do somewhat more than they have done, but I understand the challenges they face,” including a broad membership.
Deborah Rhode, director of the Center on the Legal Profession at Stanford Law School, said “some of what is happening at this historical moment really needs widespread condemnation, including by groups that don’t have a partisan agenda.
“I also think we’re all paying a cost by not having mainstream organizations call out what are clear violations” of ethics and rule of law, she added.
The ABA faced public scrutiny
last year when objecting to sections of an article calling Trump a “libel bully” that was scheduled to run in an ABA publication.
David Bodney, a Ballard Spahr partner who opposed efforts to censure the article, said the ABA has a vital role to play at this time.
The ABA doesn’t have to call out a politician by name, he said, but it should call out the action, or inaction, of a politician “when the conduct unmistakably undercuts constitutional values or the rule of law.”