Gibson, Dunn & Crutcher partner Theodore Olson has dropped his membership with the American Bar Association because of the group’s letter supporting an FBI investigation of sexual misconduct claims against Brett Kavanaugh.
“I do not wish to be a member of an organization which purports to represent me, as a member of that organization, on such issues without my participation in formulating such positions or consent to being represented in this fashion,” Olson said in a statement to The National Law Journal on Tuesday.
A former U.S. solicitor general with strong ties to Republican and conservative groups, Olson asserted that ABA president Robert Carlson exceeded his authority in sending the letter to the Senate Judiciary Committee last week.
“He purports to have the authority to do so under the ABA charter and by-laws. He does not,” Olson wrote. “The members of the ABA do not need his self-appointed leadership on issues of due process and the rule of law or how the Senate Judiciary [Committee] should conduct its constitutionally ordained processes.”
ABA executive director Jack Rives said Tuesday, “I’ve got the greatest respect for Ted Olson, who has been a longtime friend and supporter of the ABA. But in this case, the president does have the authority under our bylaw 29.2 as the principal spokesperson for the association.”
Rives added: “I would hope that people wouldn’t let one issue affect their membership.”
Carlson, a shareholder at the Butte, Montana, law firm Corette Black Carlson & Mickelson, said in his letter to the Senate Judiciary Committee, “We make this request because of the ABA’s respect for the rule of law and due process under law.” He added, “Respectfully, the Senate should recognize that a thorough FBI investigation will demonstrate its commitment to a Supreme Court that is above reproach.”
Miguel Estrada, a colleague of Olson’s at Gibson Dunn, agreed with Olson that “it certainly seemed as if [Carlson] was trying to arrogate to himself authority he has not demonstrated he has to take sides in a partisan fight. People consider leaving when the ABA does that.”
Rives said the letter was “not designed as a partisan statement.”
Still, other lawyers supported the ABA’s letter to the Senate, saying “the reputation of the Supreme Court, Senate, and the respect for the rule of law is at stake.”
Olson’s departure from the ABA on Friday—”I was a member of the ABA until today,” he told BuzzFeed News—was yet another sign of the divisions among lawyers that have surfaced over the controversy surrounding Kavanaugh’s nomination.
Until the ABA letter was made public, Senate supporters of Kavanaugh were praising the association as “the gold standard” for giving Kavanaugh its highest “well qualified” rating in the run-up to the confirmation hearing.
The ABA’s standing committee on the federal judiciary, which approved the rating, works independently from the rest of the ABA. Its chairman, Paul Moxley, wrote the judiciary committee separately to respond to Carlson’s letter. The standing committee, Moxley said, “conducts non-partisan, non-ideological and confidential peer review of federal judicial nominees. The ABA’s rating for Judge Kavanaugh is not affected by Mr. Carlson’s letter.”
The Trump presidency has had six judicial nominees rated “not qualified” by the ABA. He trails only the George W. Bush administration among recent presidencies. According to the Congressional Research Service, Bush had seven “not qualified” picks.
The ABA regularly lobbies and participates as a friend of the court. In July, the ABA reported second-quarter spending of $250,000 on federal lobbying on legislation and issues, including LGBT rights, financial-crimes enforcement and “general advocacy on filling of judicial vacancies.”
The group reports having 400,000 members. Bloomberg Law reported Wednesday that the group has lost some 60,000 members over the last 10 years.
Asked if the ABA has experienced other drop-offs in membership such as Olson’s, Rives said membership data was proprietary. But he said the ABA staff has been fielding calls from members on both sides: some complaining about the Kavanaugh rating and others complaining about the request for an FBI investigation of Kavanaugh.