The Volokh Conspiracy

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The American Bar Association's Lack of Transparency

The ABA president called for a delay in voting on Kavanaugh's nomination, but the ABA refuses to provide any details about this decision


Yesterday ABA president Robert M. Carlson sent a letter to Senators Grassley and Feinstein on behalf of the ABA. The letter urged that senators delay a vote on Judge Kavanaugh's nomination until "an appropriate background check into the allegations made by Professor Blasey and others is completed by the Federal Bureau of Investigation." The letter does not say how the ABA decided to adopt this position, who Carlson consulted (if anyone), or anything else that might shed light on the origins and evolution of the letter.

This morning, I emailed Carol Stevens, the ABA's Associate Executive Director, Media Relations and Strategic Communications. After identifying myself as a Volokh Conspiracy blogger, I wrote, "I was wondering if you could tell me who the president of the ABA consulted before issuing his call to delay the Kavanaugh vote, whether there was some sort of vote among those consulted, and if so whether the vote was unanimous. Or did he write the letter solely on his own initiative?"

Stevens replied, in toto, "We believe the letter speaks for itself. Thanks."

Of course, the letter does not speak for itself, and it's embarrassing that Stevens publicly claims otherwise. Members of the media, members of the ABA (which include me, as all law professors are essentially required to be members), and the general public have no idea whose opinion the letter reflects–Carlson's alone? Carlson and some other ABA insiders? The latter and members of the ABA's judicial nomination team, which had previously deemed Kavanaugh "well-qualified" for the Supreme Court?

I find it very troubling that a powerful organization that represents members with a wide spectrum of political and other views would issue an important statement on a major controversy while not only failing to provide any indication of how that statement came to be, but also refusing media requests for further information. The ABA's lack of transparency further discredits an organization that has lost the confidence of a large portion of the American bar.

UPDATE: "The correspondence by Robert Carlson, President of the American Bar Association…was not received by the American Bar Association's Standing Committee on the Federal Judiciary prior to its issuance…The ABA's rating for Judge Kavanaugh is not affected by Mr. Carlson's letter."

ADDITIONAL UPDATE: A reader points out that the board of governors, and not the president, is supposed to have the authority to speak on behalf of the ABA.