May 17-19, 2009

Days 85-87 on the Road in 2009

Sunday I was back at the Birmingham Shuttlesworth International Airport for the noon flight through Atlanta on Delta to Reagan National Airport in Washington, D.C., in order to attend the 2009 Annual Meeting of the American Law Institute. I was flying on Sunday to get there in time for the ALI Council dinner that evening, and because my remarks were scheduled for the Opening Session Monday morning. Although I've been an ALI member since 2004, I am not a member of the Council, but had been invited to the Council dinner by ALI President Roberta Cooper Ramo, a former president of the ABA.

The next morning, I delivered remarks at the opening session of the ALI. I was able to discuss what the ABA was doing to promote the common core values of the legal profession, and the remarks seem to have been received well. My remarks had been preceded by remarks of Honorable Pierre Leval, a judge of the United States Court of Appeals for the Second Circuit. Judge Leval gave a very thoughtful and entertaining talk about the ALI and its proceedings, ending with the quote by Maurice Sendak, children's author, "Let the wild rumpus begin."

This was followed by the presentation of the ALI's Henry J. Friendly medal to former Attorney General of the United States Nicholas deB. Katzenbach. General Katzenbach was introduced by Honorable Lou Pollack, Judge of the U.S. District Court of the Eastern District of Pennsylvania. General Katzenbach's remarks in accepting the medal rang true with me, as they dealt primarily with the independence of the bar and of individual lawyers, who must render independent legal advice, even when it is advice the client does not necessarily want to hear.

After reports of other chairs and officers, the ALI got down to work on the various projects that it has underway.

After lunch I made my way over to the ABA D.C. office, where there was a meeting with our Governmental Affairs Office Director Tom Susman and lobbyist Bruce Nicholson, together with Professor Steve Saltzburg, who had chaired our Kennedy Commission on criminal sentencing issues. We were preparing for the meeting with Senator Jim Webb of Virginia, who has introduced a bill to establish a governmental commission to review federal criminal sentencing issues in a comprehensive way. Our Kennedy Commission had previously done a lot of work in this area.

While we were meeting, my ABA-furnished Blackberry rang, but indicated "unknown number". Then my firm-issued Blackberry began to buzz, again showing "unknown number." If someone wanted to get in touch with me that badly, calling on both cell phone numbers, I figured I at least should figure out who it was. I checked voice mail and it turned out to be Kareem Dale, who works in the White House Office of Public Engagement for Tina Tchen, an old friend of mine from the ABA Section of Litigation. Tina is the Director of the Office of Public Engagement (formerly the Office of Public Liaison). Kareem was calling to see if I could come to the West Wing for a meeting at 10 a.m. the next morning to discuss the process for the upcoming Supreme Court nomination to replace retiring Justice David Souter. It was pure coincidence that I was in town for the ALI meeting, and I immediately returned the call and told Kareem that I would be glad to be there.

When I arrived, I found, as I expected, several others had received a similar call. At the northwest gate, I found Dean Reuter, the Director of Practice Groups for the Federalist Society. Upon entering the West Lobby, I ran into Veta Richardson, the Executive Director of the Minority Corporate Counsel Association, Fred Krebs, the President of the Association of Corporate Counsel, David Lyle, the Acting Executive Director of the American Constitution Society, Caroline Frederickson, the Director of the ACLU, Barbara Arnwine, head of the Lawyer's Committee for Civil Rights Under Law, and Les Weisbrod, the President of the American Association of Justice, formerly known as ATLA. It turns out Les, who is from Dallas, was also coincidentally in town just like I was, and also decided to come himself.

Once we all arrived, Kareem ushered us up to the second level, above the West Lobby, where we met around a conference table in Tina Tchen's office. White House Counsel Greg Craig also joined us for part of the meeting, as did Michael Strautmanis, whose title is Chief of Staff to the Assistant to the President for Intergovernmental Relations and Public Engagement. (I hope he can fit that title on a business card!) Basically, he is Valerie Jarrett's chief of staff.

It was an interesting meeting, to say the least. Almost all of these are groups that, like the ABA, neither support nor oppose nominees, nor even propose names for consideration. Nevertheless, the Office of Public Engagement at the White House was making an outreach, in this case to legal groups, to see what qualities we believed the President should consider in selecting a nominee for the Supreme Court. After indicating that any views that I had would be only mine, and would not represent the ABA, we had a wide ranging discussion and dialogue, lasting for over an hour.

From the White House, it was back over to the Mayflower Hotel, and the ALI meeting for the luncheon honoring the new 25 year and life (50 year) members. I particularly wanted to make this luncheon as the speaker on behalf of the ALI class of 1984 was Helaine Barnett, the President of the Legal Services Corporation, and a good friend. Helaine gave remarks detailing the history of the Legal Services Corporation.

That afternoon, after adjournment of the luncheon, the ALI was taking up the issue of whether they should withdraw Model Penal Code § 210.6, dealing with the death penalty, and if so, whether any reasons for the withdrawal of the § 210.6 should be given. The debate on this issue lasted until nearly 4:30, with neither the proposal of the program committee, nor the motion put forth on the floor prevailing; instead, a compromise position was adopted. This position, it seems to me, is similar to the ABA's position: The ABA takes no position for or against capital punishment, but it does advocate for a moratorium until adequate standards and resources are in place to fairly administer the death penalty. The ALI withdrew § 210.6 and recognized the somewhat intractable situation with the obstacles to the fair and impartial administration of the death penalty that currently exist.

That evening, the dinner speaker for the ALI dinner was Secretary Janet Napolitano, the Secretary of the Department of Homeland Security. Her speech, dealing principally with immigration, was particularly interesting, given her background as Governor of Arizona.

The meeting was set to conclude on Wednesday, but I was not going to be able to attend due to the 2009 Conference of the Sandra Day O'Connor Project on the State of the Judiciary at the Georgetown Law School, together with an appointment on Capitol Hill.