The American Bar Association (ABA) is a professional organization that works on behalf of American lawyers. The ABA is responsible for accrediting law schools, setting standards of conduct in the legal profession, and serving as a trade organization for attorneys. ¹

Despite claiming to be nonpartisan, the ABA has supported and lobbied for a broad left-of-center agenda on issues including criminal justice policy, immigration, abortion, LGBT issues, and gun control. In recent years, the ABA has adopted lobbying priorities including legal status for nearly all illegal immigrants currently living in the United States, the repeal of mandatory-minimum sentencing laws, taxpayer-funded abortions for low-income Americans, and the implementation of affirmative action programs. ^{2 3 4}

The ABA has long been accused of maintaining a bias towards liberal judges and professionals. From the 1950s until the early 2000s, the ABA worked in a quasi-official capacity with the U.S. Department of Justice (DOJ) to vet judges who were being considered for federal nominations. Several organizations, including the left-leaning New York Times, have reported that studies have proven that liberal judicial candidates nominated by Democrats were “significantly more likely to receive higher ABA ratings than nominations submitted by a Republican president.” ^{5 6}

Patricia Lee Refo is the president of the ABA and Reginald M. Turner, Jr. is the president-elect as of mid-2021. Both officers have made tens of thousands of dollars in campaign contributions to Democratic candidates and committees over the past several decades. ^{7 8}

History

The ABA was established in 1878 by a group of lawyers representing 20 states and the District of Columbia. In 1893, the ABA established its first “section,” or area of the law in which members could specialize and share resources. Seven years later, the ABA began the Association of American Law Schools (AALS), which formed the predecessor to the ABA law school accreditation system used today. ⁹

In the early 1900s, the ABA expanded its reach, adopting the first set of professional ethics standards for lawyers in 1908 and beginning publication of its ongoing journal in 1915. Over the next twenty years, the ABA established standards for legal education to be used to accredit law schools, created a legal aid committee, and adopted a set of ethics guidelines for judges. ¹⁰

In 1936, the ABA began its ongoing foray into political activism, setting up a House of Delegates to govern the ABA and sets it political agenda. In 1937, the House of Delegates opposed then-President Franklin Roosevelt’s plan to pack the U.S. Supreme Court with liberal justices. In the 1960s, the ABA led the call for the 25^th Amendment to the U.S. Constitution on presidential succession. In 1974, the ABA lobbied for the creation of the Legal Services Corporation (LSC), a federally-funded nonprofit corporation that assists in providing civil legal services to low-income Americans. The ABA also took steps to influence foreign policy during the 20^th century, promoting the development of the rule of law in former Soviet countries. ¹¹

Today, the ABA is the largest voluntary professional organization in the world, counting over 400,000 members. Aside from its lobbying and political advocacy initiatives, the ABA is active in providing resources within the legal community. The ABA is most known for providing law school accreditations and continuing education programs for attorneys. ¹²

In recent years, the ABA has been accused of overstating its position as the “national representative of the legal profession.” In 2017, it was revealed that the ABA only had 194,000 dues-paying members, accounting for only 14.4% of the nation’s attorneys. In 1979, the ABA counted 50% of all American lawyers as members. ¹³

Political and Advocacy Activity

Despite its claims to be nonpartisan, the ABA has adopted a left-of-center policy agenda over the years, advocating for the adoption of left-of-center policy on race, abortion, criminal justice, and LGBT issues. The ABA frequently files amicus briefs in politically contentious cases, in addition to directly advocating for left-of-center policy through its House of Delegates. ¹⁴

Criminal Justice

The ABA has adopted several left-of-center positions on criminal justice, including filing over 30 amicus briefs in opposition to the death penalty. ¹⁵ In 2013, the ABA argued against the use of the future dangerousness standard, in which jurors are asked to consider whether a defendant is likely to kill again, when evaluating whether to sentence a defendant to death. The ABA claimed that the statute could be interpreted “so broadly that a death sentence would be deemed warranted in virtually every capital murder case.” ¹⁶ The ABA has also called for a full ban on the death penalty for defendants who reported having a mental illness and for any defendants under the age of 21. ^{17 18}

The ABA has also called for left-of-center policy implementation regarding prisons. In 2018, the ABA passed a resolution urging governments to adopt policies that do away with cash bail and to refuse to incarcerate people before trial if they demonstrate an inability to pay bail. ¹⁹ The ABA has routinely advocated against juvenile incarceration and argued against continued restrictions on formerly incarcerated people after their release. ^{20 21} The ABA has also supported the repeal of mandatory-minimum sentencing laws. ²²

The ABA’s left-of-center position on criminal justice extends beyond the borders of the United States, with the ABA filing six amicus briefs in support of detainees suspected of terrorism. ²³ The ABA has also advocated for the closure of the Guantanamo Bay detention facility, calling it “an example of how not to do things.” ²⁴

Abortion

The ABA is a long-time supporter of permissive abortion policy. In 1992, the ABA House of Delegates passed a resolution claiming that abortion is a right, which allowed the ABA to lobby Congress and the Supreme Court in support of the issue. The controversial stance prompted over 3,000 lawyers to resign from the ABA in protest, claiming that the resolution “undermined” the ABA’s claims to being nonpartisan and reduced its credibility in evaluating law schools and judicial candidates. ²⁵

In 2018, the ABA came out in opposition to an Arizona law that gave custody of frozen embryos to whichever party in a divorce intended to develop and deliver the embryos. The ABA opposed the measure, claiming that the law was actually implemented in an attempt to establish the personhood of unborn embryos to support pro-life campaigns. ²⁶

In 2019, the ABA filed an amicus brief with the U.S. Supreme Court, arguing that a Louisiana law requiring doctors who perform abortions to have hospital admitting privileges ran contrary to existing precedents. The brief went on to claim that the case raised “significant concerns about adherence to basic rule of law principles.” ²⁷

In 2019, over 200 ABA members protested the organization’s proposal to move the ABA 2021 mid-year conference from Orlando to Atlanta. The protestors accused Georgia of implementing “Draconian” legislation after Governor Brian Kemp (R) signed a law banning abortion after the detection of a fetal heartbeat. ²⁸ The ABA ultimately decided to move the meeting to Chicago, citing economic reasons. ²⁹

In February 2021, the ABA passed another controversial resolution on abortion. The resolution called on states to refuse to criminally prosecute women who self-administer abortions or intentionally miscarry, even if they do so late in their pregnancies when abortion would be illegal. ^{30 31}

Immigration

Immigration is a core ABA issue, with the organization maintaining the ABA Commission on Immigration to assist in left-of-center immigration projects. ³² In 2019, the ABA released over 100 immigration policy recommendations through its Commission on Immigration in a nearly 300-page report. The report argued for “fundamental reform in every aspect of the system.” ³³ The ABA has since come out in support of legal status for all illegal immigrants living in the United States and an end to immigrant detention. ³⁴

The 2019 report recommended increased “prosecutorial discretion” to reduce the number of illegal immigrants whose cases are brought to trial and advocated for asylum officers to be allowed to unilaterally approve defensive asylum claims, rather than going through the court system. The report also argued that all illegal immigrants residing in the United States who were eligible to become lawful permanent residents should be permitted to adjust their immigration status retroactively, giving them legal permission to remain. ³⁵

The ABA has also sought to limit the authority of immigration authorities. The ABA has advocated for higher standards for immigrant detention facilities and argued that ICE officials should not be allowed to detain illegal immigrants at courthouses. ^{36 37} The ABA has also called on Congress to pass a law separating immigration courts from the DOJ. ³⁸

LGBT Issues

The ABA has long supported increased protections for LGBT individuals. In 2010, the ABA House of Delegates passed a resolution asserting that LGBT people should be allowed to have legal marriages through civil ceremonies. The ABA was encouraged to pass the resolution by liberal legal scholars, including then-DOJ Senior Counselor Laurence Tribe, in order to influence the U.S. Supreme Court in the case of Perry v. Schwarzenegger, which found that a California same-sex marriage ban was unconstitutional. ³⁹ In 2011, the ABA passed a resolution to include LGBT status as a protected class in anti-bullying codes. ⁴⁰

In 2013, the ABA passed a resolution denouncing the “gay panic” defense, making it more difficult for criminal defense lawyers to bring up a victim’s sexuality at trial. The defense allowed attorneys to argue that a defendant acted out of fear that the victim was making sexual advances towards them in order to make a defendant less culpable for a violent crime. ⁴¹ In 2020, the ABA passed another resolution which called for states to legally ban the defense strategy, claiming that it played on jury prejudices to discriminate against the LGBT community. Activists in states including North Carolina and Virginia have since used the ABA resolution to push for legislation on the issue. ⁴²

In 2014, the ABA House of Delegates voted on a resolution that encouraged the implementation of laws to prevent discrimination against LGBT people. ⁴³ In 2019, the ABA passed another resolution claiming that LGBT parents faced “state-sanctioned discrimination.” The resolution called on states to implement laws that ban foster care and adoption agencies from refusing to place children with LGBT couples, even if doing so conflicts with the agency’s religious or moral convictions. ⁴⁴

The ABA has filed amicus briefs in several influential cases on LGBT issues. In 2017, the ABA submitted a brief to the U.S. Court of Appeals for the Fourth Circuit which argued that transgender people should be allowed to use their chosen restroom, rather than the restroom of their biological gender. ⁴⁵ In 2018, the ABA submitted an amicus brief in the U.S. Supreme Court case Masterpiece Cakeshop v. Colorado Civil Rights Commission arguing that businesses should not be permitted to refuse services to customers on the basis of sexuality. ⁴⁶

Gun Control

The ABA has a long history of supporting left-of-center policies on gun control. As early as 1965, the ABA advocated for sweeping gun control regulations, including regulating interstate gun purchases, controlling the importation of firearms, and banning the sale of handguns to out-of-state residents. The ABA also advocated for mandatory waiting periods, severe penalties for offenses involving firearms, and mandated criminal background checks for all sales. ⁴⁷

During the 1990s, the ABA supported so-called “assault weapons” bans and accused guns of creating a “culture of violence of which children and youth have become victims.” In 1994, the ABA Standing Committee on Gun Violence advocated for a mandatory federal license for anyone seeking to own firearms or ammunitions. The ABA also sought to implement laws that would require all gun owners to have a license and turn all regulation of guns over to the federal government, rather than leaving the issue of gun control under state jurisdiction. ⁴⁸

In 2008, the ABA filed a brief with the United States Supreme Court which argued that the Second Amendment right to bear arms did not apply to individuals. ⁴⁹ As of 2021, the ABA has adopted a broad left-of-center gun control agenda, including recommending policies to enact laws on gun storage, require permits to purchase firearms, and ban guns in polling places. ⁵⁰

Lobbying

Aside from taking public stances and filing amicus briefs, the ABA actively lobbies the federal government through its Governmental Affairs Office (GAO). ⁵¹ The GAO tends to focus on issues directly related to the legal profession, like laws regulating law firms and client confidentiality, though it has also lobbied in support of several left-of-center policies. ⁵²

The ABA House of Delegates sets the GAO lobbying agenda by researching, proposing, and adopting policy on behalf of the ABA. ⁵³ The ABA currently maintains a document containing over 100 pages of policy recommendations and stances on legislative issues. These include a number of left-of-center positions, including support for amnesty for all illegal immigrants currently living in the United States and opposition to immigrant detentions. The ABA also supports taxpayer-funded abortions for low-income Americans, affirmative action programs, the ratification of the proposed Equal Rights Amendment, government-mandated paid family and sick leave, and environmentalist projects. ⁵⁴

In 2018, the ABA cited the adoption of several left-of-center policies among its “successes,” including continued funding for the Legal Services Corporation, increased scrutiny over Customs and Border Protection (CBP) searches in immigration cases, and expanded legal support for illegal immigrants in detention centers. ⁵⁵

In 2021, the ABA GAO set out ten policy priorities, including increased funding for the Legal Services Corporation, legal status for illegal immigrants currently living in the United States, and the repeal of mandatory-minimum sentencing laws. ^{56 57 58}

Judicial Nominations

Historical Role

From the 1950s until 2001, the ABA had an unofficial agreement with the federal government in which the sitting president would submit the names of potential judicial nominees to be vetted by the ABA before officially nominating them. In 2001, the George W. Bush administration ended this relationship with the ABA, claiming that it gave the organization an inappropriate and unfair voice in public affairs. The change came following years of criticism that the ABA was biased against otherwise qualified conservative jurists, especially following the ABA’s mixed review of Supreme Court nominee Robert Bork in 1987. ⁵⁹

In March 2009, the Obama administration reinstated the ABA’s role in evaluating potential nominees. Even the left-of-center New York Times expressed skepticism towards the administration’s position, suggesting that the ABA should not be in charge of vetting nominees when it frequently takes political positions. While the ABA denied any political bias, several studies demonstrated that liberal judicial candidates nominated by Democrats were “significantly more likely to receive higher ABA ratings than nominations submitted by a Republican president.” ⁶⁰

The Trump administration removed the role of the ABA in vetting judges, and the Biden administration announced in February 2021 that it would continue to vet nominees independently of the ABA’s rating system. ⁶¹ President Joe Biden received praise for the decision from left-of-center organizations, which argued that the ABA was also biased against women and ethnic minorities. ⁶²

Opposition to High-Profile Conservative Judges

Though it claims to be a nonpartisan organization, the ABA has a history of opposing conservative judicial nominees. In 2018, the ABA called for an FBI investigation into then-Supreme Court nominee Brett Kavanaugh to evaluate the credibility of allegations of sexual misconduct against him. ⁶³ The ABA also called on the U.S. Senate to postpone the vote on Justice Kavanaugh’s appointment until after a full investigation was completed. ⁶⁴

Prior to Justice Kavanaugh’s nomination, the ABA had rated him “well qualified.” After his nomination, the ABA announced plans to reevaluate its ranking after concerns about his “temperament” allegedly provoked by his testimony before the U.S. Senate Judiciary Committee. ⁶⁵ In 2006, when Justice Kavanaugh was nominated to sit on the U.S. Court of Appeals for the D.C. Circuit, the ABA cited concerns about his “freedom from bias” and downgraded his ranking to “qualified.” ⁶⁶ The Senate Judiciary Committee called Justice Kavanaugh to return and sit before them one day after the downgraded qualification, and Justice Kavanaugh was eventually confirmed to the Court of Appeals in a party-line vote. ⁶⁷

The ABA has even been accused of engaging in “brazen character assassination” against conservative judges by its own members. In October 2019, then-President Donald Trump nominated Judge Lawrence VanDyke to the Ninth U.S. Circuit Court of Appeals. Despite Judge VanDyke serving as Solicitor General for both Montana and Nebraska, arguing 15 cases before the Ninth Circuit, and serving within the DOJ, the ABA ranked Judge VanDyke as “not qualified” for the seat. Their report claimed that his accomplishments were “offset” by anonymously alleged criticisms that Judge VanDyke was “arrogant” and an “ideologue.” ⁶⁸

During the Trump administration, the ABA alleged that six of President Trump’s nominees were “not qualified.” Only four nominees for lifetime appointments received “not qualified” ratings from the ABA in the four presidential administrations prior to the Trump administration. ⁶⁹ Right-of-center critics have claimed that the ABA has handed out “not qualified” ratings to conservative judges based on their ideology, especially on social issues like abortion, with the ABA citing conservative stances as evidence of “bias and lack of open-mindedness.” ⁷⁰

Leadership

Patricia Lee Refo is the president of the ABA. A private litigator, Refo has also been affiliated with the American Law Institute and the National Association of Women Lawyers. Within the ABA, Refo previously worked as director of the American Bar Endowment and as the second highest-ranking official in the ABA House of Delegates. ⁷¹ Since 2003, Refo has made 55 political contributions to Democratic candidates and left-of-center political action committees, including a $7,500 contribution to the Arizona State Democratic Central Executive Committee in 2010 and over $10,000 to former President Barack Obama’s 2012 campaign. Between 2013 and 2018, Refo gave nearly $15,000 to U.S. Senator Kyrsten Sinema (D-AZ)’s campaigns for U.S. House of Representatives and U.S. Senate. ⁷²

As of 2021, Reginald M. Turner Jr. is the president-elect of the ABA. Turner previously worked as a White House Fellow and as an aide to Housing and Urban Development Secretary Henry Cisneros in the Clinton administration. Turner also sat on the Michigan State Board of Education. ⁷³ Since 2002, Turner has made 72 contributions to Democratic candidates and left-of-center political action committees totaling over $50,000. These include a $3,400 in donations to former Secretary of State Hillary Clinton’s 2016 presidential campaign. ⁷⁴

In 2019, U.S. Senator Ted Cruz (R-TX) pointed out that 8 of the 15 members of the ABA’s Standing Committee on the Federal Judiciary, the committee which evaluates the fitness of judicial nominees, had contributed at least $60,000 together to Democratic candidates and organizations. Five of those members donated to former President Obama’s campaigns, and three contributed to former Secretary of State Clinton’s failed 2016 run. ⁷⁵

Financials

Since 2017, the ABA has faced significant financial trouble. In 2017, the ABA was operating at a $7.7 million deficit, resulting in an $11 million budget reduction and substantial layoffs. That same year, an ABA employee embezzled over $1.3 million from the organization. ⁷⁶ In 2018, the ABA offered employee buyouts to some of its most senior members. ⁷⁷

In 2019, the ABA experienced further declines in revenue, reporting $127.2 million as opposed to the $149 million the organization reported in 2018. ⁷⁸ The ABA also saw a decline in net assets from $156.5 million in 2018 to $137.8 million in 2019. ⁷⁹ Nearly 73% all of the ABA’s revenue came from membership dues, meeting fees, and accreditation fees from law schools, with the rest coming from program fees and contributions. ⁸⁰

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