Picture it: you are in court, either as a claimant or defendant, and an outfit controlling the judge’s career files a brief against you. That’s the position I found myself in years ago. Most Pennsylvania lawyers, of which I was one at the time, opposed a new disciplinary program the Pennsylvania Supreme Court enacted in its self-declared authority to regulate lawyers. The program violated a dozen Constitutional provisions. Of all those lawyers offended by it, only nine of us defenders of truth, justice and the American way formed a group willing to say so on the record.
In an illustrative example, I approached a lawyer I knew pretty well to join us. He physically slumped down in his chair, looked toward his shoes and sheepishly said, “Hey, I’ve got a wife and kids.” I asked, “if you won’t defend your own rights, whose will you defend?” But he just wanted to be left alone to write wills for people.
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We appealed to the Third Circuit Court of Appeals. The judges seemed to get the point and it appeared they were leaning in our direction. The state’s attorney general appeared personally to defend the state court. He made all the expected arguments, but he had been handed a loser.
I suppose by entering a federal circuit court, just one presidential appointment away from the U.S. Supreme Court itself, we had made enough noise to be heard in Chicago, the seat of the American Bar Association, the lawyers’ lobby and Mecca to all lawyers seeking federal judicial appointment or elevation. Suddenly, the ABA intervened in the case as a “friend of the court” against us.
Their argument was essentially, “If we’re going to let lawyers have a republican form of government [Constitution: Art 4, sec. 4], due process [Constitution: Amend. 5], and all those other silly things they complain about, what will they demand next?”
The whole complexion of the case changed immediately. We were now playing defense.
Bottom line: we knew we didn’t have the resources to take it up to the top court, so we agreed to a settlement conference. In it, the parties came to an agreement that I personally considered shameful and possibly unlawful in itself, but perhaps ironically just. The state agreed to insert into their rules notice and hearing procedures before disbarment.
As for the rest of our objections, only we nine named plaintiffs were exempt from the other provisions that we considered unconstitutional. Every other lawyer in the state would be bound by them. And thus it remains to this day.
The ABA, nothing more than a membership organization that lobbies for the interests of lawyers, for decades had complete approval authority over the appointment of federal judges. They got to screen nominations before the list reached the president. As lawyers, they claimed special expertise in predicting which applicants would make good judges. In practice, the left-leaning association made sure mostly liberal judges remained on the list for presidential choice. President George Herbert Walker Bush, the elder, terminated that power, to the unending distress of the ABA.
The founders wanted to protect federal judges from political influence with lifetime appointments and other protections. But they never imagined that a cabal of private lawyers would seize control of appointments.
When we faced those judges on the Circuit Court, we didn’t realize how many of them must have aspired to the Supreme Court of the United States, an exalted position for any lawyer. They must have been thinking, “I’m one step away. Do I want to offend the keepers of the gate?”
Bush lost no time in separating the lawyer’s lobby from the process of appointing Supreme Court justices. Now this odious practice was quietly resurrected by the Obama Administration. It is the ABA that was instrumental in the nomination of Sonia Sotomayor to the Supreme Court. Now which aspiring judge wants to buck the ABA when it gratuitously enters a case by filing an amicus brief?
Most laymen and many lawyers never knew why the federal judiciary, and especially the Supreme Court, is so liberal. Now you do.
Contact Lionel Waxman at territorial@waxmanmedia or visit his website: www.newsflashpoint.com.
Comments
bones wrote on Dec 7, 2009 11:36 AM:
Mark D wrote on Nov 6, 2009 3:30 PM:
James L. wrote on Nov 6, 2009 2:18 PM:
Really!? 6 of the 9 US Supreme Court justices were appointed by Reagan, Bush 41, and Bush 43. A Republican has been in the White House 20 of the last 28 and a half years. If most of the judges are liberal conservatives have no one to blame but themselves. "