Improving the Image of the Legal Profession by Restoring the Rule of Law

I am grateful for this opportunity to address this assembly of distinguished members of our profession. Law Day is an important occasion to celebrate the success of our government of laws and not of men. This day is also an opportunity to reflect upon the challenges to the rule of law and our profession, as guardians of the law. I admit that I am humbled by the awesome responsibility of serving as the chief legal officer of Alabama; it is a privilege.

The American system of justice remains great, but too many of our citizens today have a diminished respect for our legal system and our profession. Lawyers are the butts of many popular jokes. All of us are aware of the problems with the image of the legal profession.

Fortunately, many judges and lawyers have made substantial contributions, in recent years, to improving the image of our profession. The rapid growth of the American Inns of Court is one of the best examples of this work. These organizations of judges and lawyers foster relationships of collegiality, civility, and even mentoring that are sorely needed. There is a real revival of professionalism underway in our State and Nation.

Today, I would like to offer another proposal to complement this promotion of professionalism and civility. I believe that the cynicism of many of our citizens regarding our legal system has deep roots. Reducing that level of cynicism will require an even deeper level of looking inward at the work of our profession.

I submit that our profession must begin to confront and more regularly reject the injection of politics into our legal system. This message is for both sides of the political aisle, that is both political parties. A restoration of civility and ethics goes only so far. When lawyers ask the courts to resolve political controversies, as opposed to real legal disputes, our citizens are more likely to look upon judges as mere politicians and the legal profession as just another special interest group. Why should we then be surprised when the unfavorable ratings of our profession rise in the public opinion polls? Furthermore, when courts choose to resolve political controversies, elected representatives are denied the opportunity to reach more moderate, honest, lasting, and popular solutions.

Although I know that I will tread on dangerous territory, I would like to illustrate my point by referring to two of the provocative "A" words in politics, which are otherwise unrelated: arbitration and abortion. In using these controversial topics for illustrative purposes, I do not intend to delve into the pros and cons of either issue. Rather, I want to use these issues to discuss the proper role of lawyers and the legal system. The first topic, arbitration, involves issues where honest information from lawyers is needed, but where misdirected political rhetoric is harmful. The second topic, abortion, involves a political issue that has proved to be unresolvable in the legal system.

There is a lot of talk about arbitration by at least some lawyers in Alabama. Some of the talk is helpful, but some of it is counterproductive. I submit that more of the talk should be honest and respectful of the division between law and politics.

In 1995, the Supreme Court of the United States, in the Terminix case reversed a ruling of the Supreme Court of Alabama and held that the Federal Arbitration Act required the enforcement of an arbitration clause in a contract for the control of termites in a residence. Some of you may be surprised to know that I agree with the dissenters in that case who argued that Congress never intended to apply the Federal Arbitration Act in state court proceedings. (Repeat last sentence.) For those who ordinarily admire other members of the Supreme Court, you may want to look back at the dissenting opinions of Justices Scalia and Thomas who sided with the Alabama Supreme Court against enforcing the arbitration agreement. Alas, those were dissenting opinions.

Following Terminix, it is appropriate for lawyers to warn consumers of the consequences of entering an arbitration agreement. Educating consumers about both sides of the arbitration debate is laudable and even necessary. The Alabama State Bar distributes a good pamphlet to that end. That information, however, should be honest about what is legal and what is political.

It is dishonest for lawyers to suggest that our state courts should not enforce arbitration agreements. The U.S. Supreme Court resolved that issue in Terminix; like it or not the Federal Arbitration Act is the law of the land!. Suggesting that our courts should not abide by the Terminix decision or that our courts should try to evade Terminix through chicanery means undermining the rule of law. Our courts must base their decisions on controlling legal authorities, not political pressures.

It is likewise dishonest for lawyers to suggest, aside from the context of insurance policies, that our state legislators and Governor can change the law regarding the enforcement of arbitration agreements. If members of our profession believe that the law needs to be changed, then those lawyers need to be honest and direct their political rhetoric toward our U.S. Senators and Congressmen. I am amazed that I have never heard a lawyer who opposes the enforcement of arbitration agreements in consumer contracts suggest that Senator Richard Shelby, for example, should introduce legislation to reform the Federal Arbitration Act. Clearly, Congress has the final say about this issue.

A final point about arbitration requires an inward look at our profession. Ask yourself why so many businesses across Alabama have resorted to arbitration agreements to avoid the resolution of disputes in our courts. Do you believe they all want "a license to steal," as some say, or is it possible that at least some of them view the courts and our profession as too slow, unfair, unpredictable, and expensive? Do we not owe them our best efforts to make the legal system speedy, fair, and less expensive?

For those who think they can succeed with a personal agenda by politicizing the Alabama courts, on this issue, I predict they will be disappointed and any ordinary citizens deceived by their rhetoric will, in the end, be needlessly hurt. I make that prediction with an appreciation of history. When our profession makes the mistake of trying to resolve a political issue in the courts, that mistake inevitably causes perverse and unintended consequences. That brings me to the other "A" word - abortion.

Twenty-seven years ago, the Supreme Court ruled in the case of Roe v. Wade that penumbras of the U.S. Constitution provide a right to abortion. The court swept aside the laws of fifty states and, therefore, the longstanding political consensus of the American people. Whether you agree with the policy outcome of Roe or not, you must admit that abortion has been a divisive issue ever since. About twenty years later, in the case of Planned Parenthood v. Casey, the Court reaffirmed Roe and pleaded for our citizens to accept their decision. Last week, the court, however, heard yet another case that supporters of abortion call an attack of Roe.

In Western Europe, on the other hand, abortion is not the recurring and divisive issue that it is in the United States. In Western Europe, the abortion issue has been resolved primarily in the political arena, not the courts. Countries with more liberal attitudes about abortion have less regulation and countries with more conservative attitudes have more regulation.

It could have been that way here, but for Roe, which was a political decision, with no basis in the plain language of the Constitution. So many Americans with moderate views of abortion, who, for example, favor bans of partial birth abortions or parental notification laws, could have the final say in many communities. In conservative states like Alabama, the regulation of abortion would be different from the regulation of abortion in more liberal states like California. Leaving this moral and political issue to the political arena would allow our citizens to debate it honestly in each community and avoid having one extreme position imposed on the entire Nation; it would give us more hope of resolving an issue that otherwise seems unresolvable. As it now stands, only lawyers who represent opposite positions in a lawsuit have a real say in debating this important issue, which the Supreme Court is unable to put to rest.

The American Bar Association made this problem worse several years ago when it adopted a policy in favor of abortion rights. That decision led me to resign from the ABA, but not because I wanted the ABA to adopt a prolife policy. I am prolife, but the ABA should, in my judgment, be neutral on the issue of abortion. The ABA instead, in recent years, has waded into more political controversies, including capital punishment and gay rights. Last week, the Supreme Court heard oral arguments in a case from New Jersey about the Boy Scouts where the ABA filed a friend of the court brief against the Boy Scouts and in favor of gay rights. Our profession needs an organization that speaks, with the confidence of the public, in favor of the rule of law. The ABA, however, sadly has become just another political interest group, and because of that its views are ignored in many important areas, such as the confirmation of federal judges.

By doing a better job of keeping politics separate from the rule of law, we can increase respect for the ordinary, but noble, work of our profession. We have great challenges and opportunities as guardians of the law. We have the responsibility of punishing criminals, defending the innocent, promoting order, protecting civil rights, obtaining just compensation for victims of wrongdoing, protecting the safety of children in family disputes, and ensuring that all persons stand equally before the law. It demeans us and our work to allow politics to interfere with those responsibilities. I firmly believe that, if we would do a better job of keeping politics out of the legal system, the public would hold the legal profession in higher esteem, and Law Day would be an even better celebration of our government of laws and not of men.

Thank you and God Bless you.