Legal Update: The National Bar Association Convention
Tuesday, August 4, 2009
Where can you meet in one place today the Chief Justice of the Florida Supreme Court, Michelle Obama's policy director and the attorney who represented Rosa Parks in the Montgomery Bus Boycott?" Here in San Diego at the annual convention of the National Bar Association.
MAUREEN CAVANAUGH (Host): I'm Maureen Cavanaugh. You're listening to These Days on KPBS. A big legal convention is in town this week: the National Bar Association. The nation's oldest and largest association of African-American lawyers and judges is holding its annual convention here in San Diego for the first time. The meeting has brought a number of legal luminaries to town, including the attorney who represented Rosa Parks in the Montgomery bus boycott and First Lady Michelle Obama's policy director, to name only two. Our own legal luminary, These Days legal analyst Dan Eaton, is attending the conference, but he's taken out some time to join us this morning to talk about the history of the National Bar Association, the convention, and then to bring us up to date on when the full Senate may vote on the nomination of Judge Sonia Sotomayor to the United States Supreme Court. And it’s good to see you, Dan
DAN EATON (Attorney, KPBS Legal Analyst): Good to see you, too, Maureen.
CAVANAUGH: Tell us about the National Bar Association. I think most people are familiar with the American Bar Association…
CAVANAUGH: …but may not be familiar with the NBA.
EATON: Right, the American Bar Association, of course, is the more familiar organization. It is the largest association of lawyers probably in the world, as a matter of fact. They are probably best known for the work they do on judicial nominations. But the National Bar Association, Maureen, was founded in 1925 by twelve pioneers, legal pioneers, including one woman, by the way, who are African-Americans, which was – The organization was designed to promote the administration of justice specifically with respect to the very degraded state of the administration of justice with respect to African-Americans back then. People may remember that in 1920, for example, the Ku Klux Klan was at its zenith, actually, back then. So the NBA filled a very, very important void there and also, since you mentioned the American Bar Association, the American Bar Association itself did not officially begin to admit African-American lawyers until 1943, so this was an opportunity for African-American lawyers and judges to get together in an organizational way to talk about issues of concern to them.
CAVANAUGH: And what does the National Bar Association – what kind of issues do they take on now?
EATON: Well, they do a variety of things. One is, of course, they do a variety of educational things and they provide education to their members and they have this convention where there are lot of very, very good educational programs. But they also do advocate. For example, they have their own judicial panel that evaluates judges. They also advocate on a variety of issues. They actually filed a brief, interestingly enough—I was doing research on this—in the Bush versus Gore case, talking about the various ways that you could have uniform vote counting, for example, so they’ve actually – The National Bar Association, over it’s 84 year history so far and counting, has intervened in a lot of very, very important issues, Maureen, for the betterment not only of justice with respect to African-Americans but with respect to Americans generally.
CAVANAUGH: And what is going on during this convention?
EATON: Well, it’s really incredible. As you pointed out, it really has brought together a wide variety of people. They have a variety of programs, speakers, formal speaker programs. For example, even as we speak there’s a presidential forum going on that’s brought together the likes of Al Sharpton and Jesse Jackson on the same stage. And I actually saw Reverend Jackson, who attended the opening gala last night where En Vogue performed and that was certainly the highlight of the conference for me so far. But they have a variety of different programs, educational programs and speakers. Jocelyn Frye, who is the First Lady’s Policy Director, spoke this morning, and I attended that. But it’s really been, Maureen, the informal conversations that I’ve been able to have with some of these incredible people that you mentioned. I had a chance to talk to Fred Gray, who represented Rosa Parks and Dr. King in connection with the Montgomery bus boycott back in the 1950s and found out what it was like for him, as a lawyer, to have them as clients in what turned out to be, of course, a very momentous case. I had a chance to talk to the Chief Justice of the Florida Supreme Court, who is here, Peggy Quince. I had a nice conversation with her on Sunday evening – or, Monday evening, a fascinating person to discuss her various experiences. Well, actually it was Sunday. They had a function at the University of San Diego. And just find out what it was like for her to be the Chief Justice of that pivotal state and she actually, of course, was on the court at the time of Bush versus Gore as well. And had a chance to talk to a trial court judge in Texas by the name of Brenda Kennedy, who told me about the election procedures there and how she actually got her current position as a trial judge with respect to felonies by defeating a Bush appointee back in the county that is part of the state capital. So you have a variety of different kinds of side conversations, Maureen, that make this a very enriching experience for everyone who attends.
CAVANAUGH: I’m just wondering what did Michelle Obama’s policy director, Jocelyn Frye, have to say this morning?
EATON: Well, of course she was talking to a predominantly women’s lawyer group. She spoke to the Women’s Lawyer Division so I sort of sat in the back as they were talking about how they were going to be getting free facials later today.
CAVANAUGH: Oh, my.
EATON: I just didn’t quite know how to – Well, I remember Jocelyn. She was a year ahead of me in law school. But she talked about – Her message was actually universal because she talked about the various opportunities we, as lawyers, have, in particular to give back what we need to give back with respect to the very spiritual things that we need to have. Really to give back because we get as much as we give. The theme of the breakfast and the Women’s Lawyer Division was “Am I My Sister’s Keeper: Yes I Am.” But that can really be universalized, Maureen, and Jocelyn’s speech was very much in line with that entire thing. She said no matter where you are, whether you’re working at the White House or you’re working somewhere else, you really do have that opportunity and, indeed, an obligation to give back as a lawyer.
CAVANAUGH: Now I wonder, does the National Bar Association take positions on controversial public issues? You said that they weighed in on Bush v. Gore. Anything more current?
EATON: They did, yeah. On the Judge Sotomayor nomination, you – the ABA people will remember because the Democrats kept bringing it up during the confirmation hearing, rated Judge Sotomayor well qualified, which was their highest rating. Well, it turns out that the National Bar Association’s own Judicial Evaluation Committee gave her the same exact rating and talking about how that rating is reserved for only those of the very, very highest caliber. And President Rodney Moore of the National Bar Association sent a five-page letter to the chairman of the judiciary committee explaining in great detail why the National Bar Association’s Judicial Evaluation Committee had reached that decision unanimously.
CAVANAUGH: And I wonder, is the arrest in Massachusetts of Professor Gates going to get any discussion in…
EATON: Oh, it’s coming up. I mean – And it’s actually going to come up in a formal program led by Deputy Public Defender LaTala (sp) Wilson, who is right here. She heads the criminal law section of the National Bar Association. And her – she is going to be heading a panel later this week called “Close Encounters of the Cop Kind.” Now, obviously, that brings to mind the Gates incident on July 16th except that these programs are planned about a year in advance and so it just happens that this is going to work out fortuitously. But she said while that wasn’t supposed to be part of the discussion, she has a feeling that the four panelists and, in fact, herself will weigh in on that particular controversy.
CAVANAUGH: And, indeed, how long is the National Bar Association going to be meeting here in San Diego?
EATON: Well, they’re here until the – The program officially ends on Saturday of this week. But in the meantime, you have all kinds of incredible speakers. In fact, today at noon, Dr. Randall Pinkett is going to be speaking at a lunch for the Young Lawyers Divison. Now to refresh people’s memory, he was the one who won Apprentice some years ago.
CAVANAUGH: Oh, my goodness.
EATON: And so they – This is the kind of range of people that you get…
EATON: …and how exciting it is to be here and, you know, have these side conversations with these folks as you’re having drinks and so forth as well as do the very, very serious work of the conference which relates to policy issues and all of the rest of it.
CAVANAUGH: Well, Dan, as you mentioned the National Bar Association has given a well qualified rating to Judge Sonia Sotomayor. I wonder if we can get an update on where the nomination is. The debate over her nomination begins today. Top Republicans and Democrats discussed it yesterday and previewed their arguments so they’re just about to start the full Senate getting debate over this hearing. I wonder, if we look back though, what did we learn from the week long hearing in front of the judiciary committee, the Senate Judiciary Committee?
EATON: Well, we didn’t learn a whole lot about what she’s going to do as a justice because she was very careful to avoid answering those kinds of questions but what we did learn was about her record as a judge, from both sides actually. We learned, in great detail, because it kept being brought up about her rulings on the Second Amendment, the individual right to keep and bear arms, because she ruled in a recent case, as part of a panel, that it did not apply to the states – limitations on that right did not apply to states. The limitations that the court recognized in the Heller decision recently only applied to the federal government, she said. And she, of course, each time she made these comments, she said, and I was only following the law as it existed inside of my U.S. Court of Appeals Circuit, as she said, notwithstanding Heller. So – Which did not, of course, specifically address that question. And she also talked about, of course, the Ricci decision at great length, which we expected. That was the firefighter case, and she said I was just following the law. She kept coming back to this idea of fidelity to the law. But what did we learn? We did learn that she was backing away from her more controversial comments, right? The wise Latina comment, quote, I would hope that a wise Latina woman with the richness of experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life, close quote. That’s a quote that she said but I don’t think she wants it attributed to her anymore because she backed far away from that, as a matter of fact. She even backed away from President Obama’s statement that life experiences matter from a judge in very, very close cases. She says, my approach to judging is different from that of President Obama. One more thing we learned, the witnesses for all of the flash, I mean, Mr. Ricci himself testified, for example, did not end up making a great deal of difference. The people that are going to support her were going to support her regardless, and those who opposed her would anyway.
CAVANAUGH: There’s been a lot of political hay made out of the hearings and the Republicans and the Democrats and the Latino vote and so forth and so on, but focusing primarily on legal issues, as we do here.
CAVANAUGH: Senator Russ Feingold of Wisconsin said these hearings have become little more than theatre and fail to educate the public about the views of the person nominated for the Supreme Court. And I wonder if that, indeed, with – with the – the candidates, the nominees, reluctant to give any kind of legal opinion on any – on any big legal issue, is the public perhaps disserved by that?
EATON: I don’t know. I think it is served differently than it would’ve been. Remember that this Kabuki Theatre, as the New York Times put it, started after 1987 when Robert Bork was very freely forthcoming and lost overwhelmingly in the Senate confirmation vote, and ever since then, people have been very careful. But I do think you get a sense, in fact, of the decisions that the judges actually reach, their underlying qualifications. It’s not clear how important it really is to ask judges how they are going to decide a case when you realize that the Supreme Court decides cases based on very specific facts. So answering hypotheticals, even if judges – judicial nominees were willing to do it, wouldn’t ultimately end up being all that education. And, of course, once they’re approved for life, Maureen, they’re free to do whatever they like. So they – As Senator Specter once put it, they’re going to say as much as they need to to get confirmed. And we’re about to find out, I think, with Judge Sotomayor that she did exactly that.
CAVANAUGH: And, indeed, the debate before the full Senate begins today. We’re going to get a vote probably before they go off on recess.
EATON: Before the end of the week as a matter of fact.
EATON: I did contact Senator Harry Reid…
EATON: …the majority leader’s office, and he’s – his communications direct – communications director told me that he was expecting a vote Thursday or Friday. And, look, 60 Democratic seats is a bigger number than 40 Republican seats. In fact, six or seven Republicans have already said we’re going to vote for her. John McCain, I just saw, came out against her. But there are a number of Republicans, including one, Lamar Alexander of Tennessee, who’s in the Republican leadership, who said he’s going to support her. So I expect that the vote in favor of her and she will be confirmed, will be lopsided and she will be Justice Sonia Sotomayor by this time next week.
CAVANAUGH: Is she going to take a beating though in this debate, do you think?
EATON: Oh, yeah. I mean, certainly the Republicans are going to say that there is some real concern because of her unwillingness to be more forthcoming about whether she is willing to have this fidelity to the law that she said she had. But at the end of the day, she will be confirmed and she will be confirmed by a very, very wide margin, Maureen.
CAVANAUGH: Well, I want to thank you…
EATON: All right.
CAVANAUGH: …for telling us about the National Bar Association and giving us that update on our Supreme Court nominee.
EATON: I’m delighted and I look forward to continuing to go to the National Bar Association this week. This has been an eye-opening experience and I’ve been practicing for 20 years, this is my convern – first convention of the National Bar Association but it won’t be my last one.
CAVANAUGH: All right. Well, thank you so much.
EATON: All right. Thank you, Maureen.
CAVANAUGH: And stay with us as These Days continues.
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