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November 2008

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This article is in the news archives --- for current news go to the Third Branch News.


An Interview with ABA President H. Thomas Wells Jr.

H. Thomas Wells Jr., a partner and founding member at Maynard, Cooper & Gale, P.C., in Birmingham, Ala., is president of the American Bar Association. Wells began his one-year term as president in 2008. Wells has served in the ABA’s policy-making House of Delegates since 1991 and was chair of the ABA House of Delegates from 2002-2004. He is a former chair of the ABA Section of Litigation and is co-chair of the ABA’s Special Committee on Disaster Response. He also has been a member of the ABA’s Commission on the American Jury and the ABA Commission on the Future of the Legal Profession.

H. Thomas Wells Jr.


We tend to believe we live in a country where the rule of law prevails. But you see challenges. What imperils the rule of law in the United States? And what can be done about it?

The rule of law has its challenges everywhere in the world. Again, we have to remember it’s the rule of law and not the law of rulers. In the United States, we have upheld the rule of law with checks and balances and three branches of government and quite frankly with a strong judiciary that has been able to hold our government accountable to the rule of law.

I have seen the effects of a less robust rule of law. I attended the World Justice Forum in Vienna last year for the World Justice Project as ABA President Elect. We had not just lawyers but all other disciplines from all over the world convening and talking about the rule of law. There were some places where it is much more challenging than in the U.S. But in some respects I think they understand the importance of the rule of law more than Americans because we take it for granted.

At our Board of Governors meeting last year in Colorado Springs, we invited Admiral Timothy J. Keating, Commander, U.S. Pacific Command, and he entertained questions. One of the board members asked a very interesting question: If there was one thing you could have more of, what would it be? Everyone expected Admiral Keating to say, five more attack carriers or something along those lines. His answer was a very interesting one: rule of law. He said if we could have more rule of law in the world we wouldn’t have to send our sons and daughters to try to support the rule of law around the world. I thought that was an extremely insightful comment.

You’ve recommended bipartisan judicial commissions to assist in the selection of candidates to the federal bench. What would they replace, and how would these commissions work?

Clearly, federal judges serve for life and are going to make decisions throughout their careers that are going to affect the rights of millions of Americans. So selecting the best people to fill these positions is critical to sustaining fair and impartial courts, and upholding the American ideals of justice and equal treatment under the law. Unfortunately, the nomination and confirmation process of federal judges has become somewhat of a political spectacle. At times it appears to be a tug of war over political ideology, which may hold up the appointment, create controversy, and be a threat to fair and impartial courts. When Congress and the President are fighting over politics, we end up with more court vacancies. We have caseloads backing up, and the vital work of the federal courts is not being done as quickly as it would be if we had a full complement of federal judges.

We certainly don’t believe the idea of citizen commissions to suggest nominees to the federal court is any kind of panacea for the political tug of war, but we do believe and experience has shown, particularly in the eight states that use these judicial nominating commissions, that it can go a long way to take some of the rancor out of the system.

Our idea would be to have commissions made up of citizens—which would include lawyers but not necessarily be a majority of lawyers, and people from both political parties—to vet people for federal judgeships. They would recommend X number of people to their Senators, who then either send the list to the White House, add to it, or send some smaller number.

In one form or another, this process is already in place in eight states. We are raising the issues with Senators as we go to Capitol Hill. We are asking the new President to consider setting up a parallel system for federal appellate court nominees. Certainly if the White House lets it be known that the President will more favorably consider someone who came up through the commission process, then perhaps more of the Senators would agree to set up these bipartisan judicial nominating commissions.

The Judicial Conference identifies judicial emergencies in courts of appeals and districts where there are long-standing judicial vacancies. How do judicial vacancies affect attorneys and litigants?

It’s not only what I hear from ABA members: I’m a litigator myself. It’s a problem particularly to get civil cases to trial in federal courts, because of the huge influx of federal criminal cases and the Speedy Trial Act, of course, mandates that criminal cases go faster. So, that problem is evident even in districts that are fully staffed. It is exacerbated when there is an unfilled judicial vacancy.

If you had one piece of advice on matters that impact the legal community to offer the incoming White House Administration, what would it be?

In the October issue of the ABA Journal, Thomas Susman of the ABA’s Government Affairs Office and I jointly signed a letter to the next President—we intentionally did it before we knew who the next President would be—making several suggestions on things that he could do immediately after his inauguration to improve, not only the legal community but indeed the rule of law.

We intentionally tried to look at things that would not require legislation: judicial nominations and confirmations; doing something with our broken immigration system; rejecting the use of Presidential signing statements; and protecting the attorney-client privilege. As you know we’ve been working for quite awhile with the Justice Department on their policies of waiver of privilege in corporate criminal investigations. We managed to get DOJ to change their policy. The problem now is that policy only applies to the Justice Department and not yet to the FCC, the EPA, HUD and other agencies with similar policies. We believe the next administration, by Executive Order, could correct that problem in all agencies.

In February 2007, the ABA released its new Model Code on Judicial Conduct. How has it been received at the state level? Are there significant differences between the ABA Code of Conduct and the Judiciary’s own Code of Conduct for United States Judges?

At the state level, Hawaii and Indiana have adopted revised judicial codes that are based upon the ABA 2007 Model Code. Eleven other states have issued proposed revisions to their state codes very similar or identical to the ABA Model Code. Twenty-one other states have committees that are reviewing their judicial codes.

The ABA Center for Professional Responsibility has a policy implementation committee, chaired by Maryland State Court Judge Barbara Howe, that is working on an ongoing basis with states to encourage all states to review their current judicial codes.

The federal judges’ Code of Conduct is very similar to the ABA Model Code. Nearly all the provisions in the federal code that differ from the provisions in the ABA Model Code are ones that are either dictated by federal statutes or case law or by the unique characteristics of federal courts. For example, because federal judges are appointed, you don’t need any provisions dealing with the election of judges. Another difference is in the disqualification for economic interests provisions. Under 2.11 of the ABA Model Code, a judge is disqualified if he or she has an economic interest in or is a party to the proceedings. The ABA Model Code defines economic interest as ownership of more than a de minimus amount. The federal Code of Conduct has a more restrictive provision and has a “however small” standard, meaning any ownership of stock in a party would automatically require a federal judge disqualification. So, on a substantive basis, that’s probably the biggest difference. 

Pay restoration for judges and pay compression at the executive level are ongoing issues for the federal Judiciary, but are these issues that concern the majority of your ABA membership? Does it matter that federal judges are paid less than many law professors or law firm associates?

It clearly does. Our former chief judge here in the Northern District of Alabama, U. W. Clemon, has just decided to leave the federal bench. He was on senior status and obviously could have stayed for life, but left primarily because he said the pay was not commensurate with the work, even at the senior level. So he’s joining a law firm. Former Chief Judge Sam Pointer did the same thing several years ago. That meant that at least here in Birmingham we lost two of our most senior and most respected federal jurists because they simply weren’t being paid enough.

Clearly, if you become judge, whether at the state or federal level, you have to be doing it not for the money but to serve the public. But at the same time, you have to support your family. If you’re going to do it at a younger age you may have to put children through college, and it is just very difficult to do at the current pay scale that we have for federal judges. That is why this is one of the issues at the very top of the ABA’s lobbying agenda with Congress.