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Interview: An Interview with ABA President Karen Mathis
Karen J. Mathis, a partner in the Denver office of McElroy,
Deutsch, Mulvaney & Carpenter, LLP, is the president of the American
Justice John Roberts Jr. has said that the failure to raise judicial
pay “threatens to undermine the strength and independence of the federal
Judiciary.” Where does the ABA stand on judicial pay raises?
Investing in our court system is vital to the proper functioning of our
democracy. Yet Congress has allowed federal judicial pay to fall
farther and farther behind inflation, and to lose any reasonable
relation to other positions in the legal profession, such as law school
faculty and even first-year associates.
The American Bar Association strongly supports an
immediate, significant pay raise to overcome years in which Congress
failed to address the persistent erosion in real judicial pay. The ABA
also lobbied Congress in April to stop linking judicial pay to
congressional salaries, and instead to reestablish a nonpartisan salary
review commission to recommend pay rates for members of Congress,
judges, and other top federal officials.
The issue is so important that Justices Anthony M.
Kennedy, Stephen G. Breyer and Samuel A. Alito Jr. all have testified
Their leadership is admirable, but the organized bar has a
special duty. Few understand the value, and expertise, of our judges
better than do the lawyers who serve before them. We will continue
pushing this important cause before Congress and the American people.
ABA’s participation in the Senate confirmation process of judicial
nominees has sparked controversy on occasion. As the ABA continues to
provide the Senate with information about nominees, what, if anything,
can it do to minimize future criticism?
A: Much of the controversy stems from the fact that many people don’t fully understand the ABA’s judicial evaluation process.
The ABA Standing Committee on the Federal Judiciary has
provided its rating of Article III judicial nominees to the U.S. Senate
for more than 50 years. The committee is the only entity that conducts a
comprehensive, confidential peer review of professional qualifications
of nominees. The committee typically interviews 60 or more judges,
lawyers, and other community members who have personal knowledge of the
nominee’s professional qualifications.
The committee only considers candidates’ professional
qualifications—specifically judicial temperament, professional
competence, and integrity. A candidate’s ideology is not considered.
The ABA has been praised and criticized at times, by both
parties, and we think that fact speaks to the nonpartisan nature of
these ratings. Even though it’s probably impossible to prevent all
controversy, the ABA constantly strives to learn from experience and to
refine and improve the evaluation procedures.
federal courts saw a substantial drop in personal bankruptcy filings
after implementation of the Bankruptcy Abuse Prevention and Consumer
Protection Act. You recently testified before Congress on BAPCPA. What
are the ABA’s concerns?
the ABA had no position on the overall act prior to passage, it did
support several narrow provisions in the new law that allow direct
appeals of final bankruptcy orders to the courts of appeals in many
cases and permit bankruptcy attorneys to pay referral fees to nonprofit
attorney referral programs.
On the other hand, the ABA strongly opposed provisions
requiring debtor bankruptcy attorneys to: (1) certify the accuracy of
the debtor’s bankruptcy schedules, under penalty of harsh court
sanctions; (2) certify the ability of the debtor to make future payments
under reaffirmation agreements; and (3) identify and advertise
themselves as “debt relief agencies” subject to a host of new intrusive
regulations that interfere with the confidential attorney-client
These three provisions have forced debtor attorneys to
charge substantially higher fees, and have discouraged many attorneys
from providing pro bono bankruptcy services.
The ABA has prepared draft legislation that would reverse
the attorney liability provisions in the new law, and we are urging
Congress to enact the bill as soon as possible. Your readers can learn
more at http://www.abanet.org/ poladv/priorities/bankruptcy/brattyliability_resources.pdf.
Public opinion polls consistently indicate that Americans know very
little about our nation’s legal system, for example, about the proper
role of judges in sentencing. What is the ABA doing to change that?
When people don’t understand the basics of our democratic system,
that’s a threat to our way of government. Yet schools have devoted less
time to civic learning in recent years, as they struggle to keep up with
standardized testing demands in other subjects.
In 2005, the ABA renewed its longstanding commitment to
public education on legal matters by forming the ABA Commission on Civic
Education and the Separation of Powers. And the Association’s Public
Education Division works actively to publish books and training
materials to increase civic awareness.
In August, the ABA House of Delegates is to consider a
resolution calling for a greater national commitment to civic education.
It says that civic learning should be accorded national educational
priority on a par with reading and mathematics. The ABA will continue
working with other civic learning organizations to promote this
crucially important cause.
Q: What is the ABA’s Rule of Law Initiative?
The Rule of Law Initiative is a public service project of the American
Bar Association dedicated to promoting rule of law around the world, and
providing technical legal assistance to more than 40 nations. It brings
together five ABA regional rule of law initiatives.
The first of these initiatives started in 1990, following
the fall of the former Soviet empire. Over the years, we have been
honored and enriched by the assistance of Justices Sandra Day O’Connor,
Ruth Bader Ginsburg and Justices Kennedy and Breyer.
The rule of law is essential in addressing the world’s
most pressing problems, including poverty, economic stagnation, and
Rule of law programs have included efforts to train
judges and lawyers in achieving greater professional independence;
training lawyers and other advocates in public service law; assisting in
post-conflict resolution; and fighting corruption and human
In the last year, the ABA held a valuable symposium in
Chicago with the International Bar Association and has worked to educate
our many sections and other entities on the importance of the rule of
law. Next year, my successor, Bill Neukom, plans to expand on this work
with the World Justice Project. This exciting and ambitious project will
seek to expand the rule of law effort by forming partnerships with
other professional disciplines, including doctors, clergy, educators,
labor officials, and journalists, to name a few.
Q: One of your initiatives looks at “Baby Boomers.” What is your message for an aging generation of jurists and lawyers?
legal profession in the United States is facing a massive movement of
lawyers who will be leaving the full-time, active practice of law: as
many as 400,000 of the nation’s 900,000 practicing lawyers will retire
over the next 10 to 15 years.
Like baby boomers in other fields, lawyers are
reinventing retirement, and many of us are wondering what we will do
with “the rest of our lives.”
The ABA is uniquely able to assist in this transition,
and we will bring all of our resources to channel this talented group’s
attention back into the communities that need it. We have created an
online matching service for lawyers entering active retirement and the
community organizations that need their help. The ABA is also addressing
the impact of these retirements on lawyers and the legal profession.
Readers can learn more about this initiative at www.abanet.org/secondseason.
federal court system sees a small number of juvenile offenders, but
there is concern these numbers will grow in coming years. One of your
initiatives targets these young people at risk. How can the legal system
A: America’s youth is our most important asset—our future is in their hands.
Yet many young people face problems that are getting
wider, deeper, and more complex. We see this in the growth of girl gangs
and the dramatic rise of adolescent girls in the juvenile justice
system, in foster children released to the streets at age 18 with little
preparation for life, in the numbing failure of courts and schools to
assist “status offenders,” such as truant students and
Over the past year, the ABA has hosted more than a dozen
round-tables in cities around the country, bringing youth specialists
together, and discussing new ways to collaborate. We have formed
partnerships with groups like the Girl Scouts of America and the Boys
& Girls Clubs of America to develop non-violence education for
And we have highlighted programs that work. Recently, I
met with the Dallas Bar, which showed me one of the most imaginative
programs I’ve seen yet: an “ementoring” program that connects at-risk
teenagers with lawyers by e-mail. It’s cutting the drop-out rate, and
that almost certainly means we’re cutting the future crime rate
Q: How is the effort to protect the Judiciary from political interference evolving?
Many members of the 109th Congress led a sustained and troubling attack
on the federal Judiciary. This included threats of impeachment and
funding cuts after the Terri Schiavo case, multiple court-stripping
bills, and a bill that would have established an inspector general to
conduct potentially intrusive investigations.
These efforts failed, but critics of the Judiciary have
taken their campaign to the states. Last year, there were several ballot
initiatives targeting the courts, and we expect to see many similar
battles in the coming years.
The good news is that all the worst initiatives were
beaten back last year. In particular, South Dakota voters overwhelmingly
rejected the “Jail 4 Judges” initiative, which would have exposed
judges to lawsuits and even jail for decisions made on the bench. Voters
rejected other measures targeting the courts in Colorado and Oregon.
These campaigns are as big a threat to our courts as any
federal legislative campaign. We don’t want them to gain traction at the
state level. An attack on one part of our justice system is an attack
on all of it.
Q: Your term of office ends in August. What accomplishment are you most proud of during your term?
accepting the ABA gavel last August, I said the theme of the bar year
would be service, as it is in the nature of lawyers to serve. During my
travels as ABA president, I have seen that spirit of that service again
and again. This year, it has been an amazing honor and privilege to
serve our profession.
The ABA is the voice of the American legal profession; we
strive to defend liberty and pursue justice. I am proud to have
continued the ABA’s tradition of protecting the independence of the bar
and bench. In addition to judicial pay, which we discussed earlier, I
had the opportunity to testify twice before Congress in defense of the
And I am very proud of the forceful response by the ABA,
and others in the organized bar, in support of the right to pro bono
counsel for Guantanamo detainees. When Charles Cully Stimson, a
high-level Pentagon official, threatened law firms whose lawyers were
voluntarily helping the detainees, we cried foul. Mr. Stimson
apologized, which was appropriate, and he later resigned.
Finally, I am proud of the ABA’s work with bars of other
nations. Last December, the ABA signed an agreement with the All-China
Lawyers Association to pursue projects of mutual interest, and as ABA
president I recently co-authored a news-paper column with presidents of
the Law Society of the United Kingdom and the Canadian Bar Association,
in defense of the great writ, habeas corpus. It was the first-ever joint
column by our nations’ bar associations.