June 2007

 

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 Bar Association.

Q: Chief 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?

A: 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 before Congress.

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.

Q: The 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.

Q: The 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?

A: While 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 relationship.

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.

Q: 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?

A: 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?

A: 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 conflict.

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 trafficking.

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?

A: The 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.

Q: The 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 help them?

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 difficult-to-parent children.

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 youngsters.

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?

A: 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?

A:In 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 attorney-client privilege.

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.