Miers, the ABA, and candles in the darkness

I'm about to admit to résumé fraud.

I'm pretty sure that on every written résumé I've ever had after beginning the practice of law — and being somewhat of a credentials snob myself, I've always had one lying around somewhere — in listing my "professional affiliations," I've had a line reading something like this:  "Member: Houston Bar Association, State Bar of Texas, and American Bar Association." And that's sometimes been a lie.

Oh, I've been a member of the State Bar of Texas continuously, without break or exception, ever since the day I got my law license (Nov. 24, 1980 — the date's embossed on my bar card). In Texas, you have to be; membership in the State Bar is mandatory in order to be licensed. And I believe strongly in the professional, charitable, educational, and public service work done by the Houston Bar Association. Like the SBoT, it's essentially an apolitical group, one that includes lawyers of every political stripe, from all practice areas, from all size firms, etc. So I've tried to keep my membership in it current, and I occasionally go to some of the Houston Bar Association's continuing legal education luncheons, and so forth. I'm not particularly "active" in either the SBoT or the HBA, but I'm a willing supporter of both organizations and their work and goals.

But my membership in the ABA has been spotty at best. I think if one were to consult its membership records, one would find I've not been a member now for more years that I have been a member. And I certainly haven't revised and re-revised my résumé to reflect my drifting in and out of the ABA.

Like many lawyers, I'm ambivalent about the ABA. Like my local and state bar associations, it does some very commendable things, particularly with regard to pro bono and continuing education. Some of the practice specialty sections of the ABA are quite good, and the regular magazine of the ABA Litigation Section, for example, is quite useful.

And certainly when Lewis F. Powell, Jr. was nominated to the Supreme Court in 1972, his past presidency of the ABA was universally considered an important qualification. It demonstrated his devotion to the profession; it showed that he was a leader among and respected by his peers; it showed his strong and regular character. No one dreamed of suggesting that it said anything, however, about how he might vote in cases on the Supreme Court! Nor, I think, can any of his votes be explained in hindsight as having had anything specific to do with his past ABA involvement.

But over the course of my own career, the ABA has become increasingly political — more of an advocacy group for particular political points of view, and less of a "service to the profession and society" organization. And not to put too fine a point on it, it just irks the hell out of me for the ABA to be using my dues to help promote any political agenda — regardless of whether that political agenda matches up with my own or not! I haven't resigned in a huff, as a protest. But unless I've been at a firm that paid the ABA membership dues automatically for all of its lawyers — and paying the dues is the only "qualification" for membership besides having a law degree, I think; it's by no means an "exclusive" club or a credential suggesting any particular individual merit or accomplishment — I haven't maintained my ABA membership continuously or even regularly.

Nevertheless, of all the arguments being thrown up against the Miers nomination, I think the one that most disgusts me — other, perhaps, than the ugly innuendo implicit in comparing her nomination to that of the ethically challenged Abe Fortas — is the suggestion that because Harriet Miers has been not merely a member, but active in the ABA, she's somehow an unfit nominee. Here (slightly edited) is something I left as part of a comment over on Professor Bainbridge's blog today (emphasis in original):

I explain over on my own blog, at length, why Ms. Miers' participation in either the Dallas Bar Association or State Bar of Texas ought not trouble any conservative, for those are not political lobbying or advocacy groups, but genuinely apolitical "service to the profession and society" groups.

With respect to the ABA, if there were indications that Ms. Miers had helped move that group to the left, or that it had moved her leftward, I agree that would be troubling; but there are no such indications. Prof. B refers to her "beloved ABA"; but a lawyer who's invested so much into her local and state "service to the profession and society" groups naturally longs for something similar, and similarly effective, at a national level. It is a damned shame, a travesty, and a legitimate indictment of the legal profession that we've lost and we now lack an apolitical national bar organization comparable to the Dallas Bar Association or the State Bar of Texas. The ABA used to be one, but it's been possessed by demons. I cannot fault her for wanting and working to see them exorcized. Indeed, I'm ashamed that I, like so many other lawyers who value the need for such a national bar association, gave up that fight.

How dare the opponents of this nomination condemn Harriet Miers for lighting a candle instead of raging against the dark? How dare they fault her for acts of professionalism?

I don't draw the comparison to Justice Powell to suggest that Ms. Miers' voting on the Court would likely resemble his; indeed, to the extent that the ABA returned to its apolitical professional mission, one ought not be able to infer anything about likely votes from participation in it. And there were times that I didn't agree with Justice Powell's decisions on the Court (although many more times when I did). But no one who's even remotely knowledgeable on these topics would argue that Lewis Powell was anything less than a giant, not just of the ABA, but of the American bar; a prince among lawyers and men; beloved of and admired by his clerks and his fellow Justices; and a decent, dignified, and ethical man who embodied and exemplified the personal and professional qualities to which our profession ostensibly aspires. The notion that conservatives are now holding Harriet Miers' work with the American Bar Association against her — when she not only advanced its legitimate public and professional service goals, but endured much grief and frustration in trying her best to restore the ABA to those primary purposes — must have Justice Powell spinning in his grave.