THE AMERICAN Bar Association, the national organization of lawyers which has 365,000 members, routinely takes positions on any number of issues before the courts and Congress. Its views are sought or proffered on matters as diverse as the merits of changes in the antitrust laws and the government's role in combating discrimination against homosexuals. These, like most public issues, are legal as well as policy matters, and the professional opinion of this body of lawyers, whether in briefs or testimony, is usually welcome.
Yet the ABA has a problem in this role as commentator on policy questions, in that it is also called upon from time to time to play a conflicting, more detached role which it also cherishes. That is, of course, that it is asked to evaluate candidates for federal judgeships, including for the appellate and Supreme courts. The problem that arises is a simple one of potential conflict of interest that any lawyer might counsel a client to avoid: What happens when a candidate for an important judgeship, whatever his other qualifications, has taken a policy position with which the ABA vigorously disagrees? How, in these moments of extreme controversy, does it assure all sides -- and itself -- that its view of the candidate is independent of its view of the policy question, that it is not affecting a purely professional pose when advancing what is essentially a political agenda?
The organization has had to confront its dilemma and much more this week; it met in Chicago to debate, among other things, the question of whether to take a position on abortion. This is a legal matter but plainly also a political, personal and moral one. In February, the policy-making board of the association voted to endorse the position that a woman's right to abortion was guaranteed by the Constitution. This provoked a strong reaction within the membership. More than 1,400 lawyers, including some officers, resigned; the elected leadership of the ABA voted 21 to 9 to stay neutral on the question; and earlier this week those attending the convention also voted 885 to 837 for neutrality.
But the debate is of particular interest because of the ABA's quasi-official role in the judicial confirmation process. Abortion was a major issue in the debate on Judge Robert Bork's qualifications for the Supreme Court two years ago and could become the same in the case of Judge David Souter. If the ABA has strong views on abortion, might these influence it in taking a position on Judge Souter, or could it be objective? How would we know? No nominee for the Supreme Court is likely to be confirmed without the ABA's endorsement, so much is at stake.
We think the professional association should evaluate only a candidate's scholarship, legal experience and integrity, not his political philosophy and certainly not his views on a matter of great controversy that is continually before the court. The ABA as a private association is free to take whatever stand it chooses on public matters. But yesterday it backed off its stand on abortion. Though the members who voted doubtless had many motives, we think the organization was wise to do so. The ABA needs to understand that its special role in the judicial confirmation process will be challenged if it is thought to be governed even in part by policy positions on such questions as abortion. The organization has to choose whether it wants to be above the fray or part of it.