American legal education is the best in the world, but it needs to evolve to match up with the rapid changes that are taking place in the legal profession.
As the cost of law school has skyrocketed, student debt has grown to unsustainable levels for many graduates. The recession, combined with structural changes in the practice of law, has diminished job opportunities and salaries. Law school applications are decreasing by record numbers.
At the same time, many law schools have not prioritized teaching law students what they actually will do when they become lawyers. Although some schools have made significant strides in providing training in legal clinics and other hands-on settings, law firms still take on most of the crucial role of teaching young associates the craft and customs of practicing law. And clients have footed the bill, understanding that this is how young lawyers learn. But clients and employers are no longer as willing as they once were to pay for associate training.
In response to these changes, fingers have been pointed: at law schools, at law professors, at law students, at the student loan industry and at the ABA's Section of Legal Education and Admissions to the Bar. The finger-pointing has not moved us closer to a solution.
ABA leadership commissioned a Task Force on the Future of Legal Education last year to determine how law schools, the ABA and other stakeholders can address issues concerning the economics and delivery of legal education. The panel has been soliciting views in the widest way possible to identify how the bench, the bar and the legal education community can work together to provide meaningful education and careers for law students and graduates.
At the American Bar Association’s Annual Meeting this weekend, Sen. Lindsey Graham (R-S.C.) urged his conservative friends to stop obstructing President Obama’s qualified judicial nominees, even as Graham has moved to block a string of appeals court nominees rated unanimously well-qualified by the organization he was addressing.
“If President Obama wins a second term, it is not appropriate for us to try to stop all of his nominees because we don’t adhere to his philosophy,” Graham told an audience of ABA members. “It’s only appropriate when the person is not qualified for the job.”
The Department of Justice has released startling evidence that language barriers are leading to serious injustices in courts in North Carolina. In a March 8 letter, DOJ warned North Carolina that its ongoing failure to provide court interpreters in civil cases, and in some criminal cases, violates the federal Civil Rights Act, which bars courts and other recipients of federal funding from providing worse services to people on the basis of English language ability.
DOJ reports that prosecutors in Wake and Durham counties ask people with limited English proficiency to plead guilty and then, assuming the role of “interpreters,” convey the guilty pleas to the courts. A judge relying solely on “prosecutorial interpreting” cannot know whether the person is even aware that a guilty plea is being entered, much less whether he understands the charges and consequences. When the federal government then deports the person, it cannot know whether it is deporting an innocent person.
The quality of justice is equally in doubt in civil cases. In 2010, a mother in Wake County lost permanent custody of her children after a trial in which she struggled to understand basic facts because she had limited command of the English language. Although she told the judge about her language difficulty, the court provided no interpreter. She also had no lawyer to help. Communication was so poor that at the end of the case she did not even understand that the judge’s ruling would cause her to lose her children.
Adding to the calls this week from eight Senate Democrats to hold immediate up-or-down votes on the long-pending judicial nominees, American Bar Association President Wm. T. (Bill) Robinson III is urging ABA members to ratchet up the pressure on judicial nominations.
“Washington’s partisan gridlock has stymied not just the policy process, but also the responsibility of the Senate to give advice and consent in the nomination process,” Robinson said. “Our federal court system —indispensable to the nation’s economy and the justice and freedoms we cherish — is being quietly undermined by needless deadlock.”
A persistently high rate of judicial vacancies is not without consequence, he explains. It causes backlogs. And backlogs are “bad for business," "unfair to individuals," and slow "government enforcement actions, which ultimately costs taxpayers money.”
In the Central District of Illinois, the chief judge, Jim Holderman, just recently sent a letter to Sen. Dick Durbin, imploring him to do everything in his power to move forward two controversial nominees in his district, considered a judicial emergency.
“The Bottom Line,” said Durbin in his floor statement Tuesday, is that “judicial nominees with no controversy, widespread bipartisan approval, are being held up on the Senate calendar and not approved.”
“It was not so long ago that liberals and conservatives could easily win confirmation as long as they were well qualified, fair-minded, and had judicial temperament,” said Sen. Dianne Feinstein in her floor statement. She continues:
It may even surprise some that Justice Ruth Bader Ginsburg was confirmed by a vote of 96 to 3, and Justice Antonin Scalia was confirmed 98 to 0. That was a different time.
Today partisanship has stalled even the most uncontroversial judicial appointments. Senate Republicans allowed no nominees to be confirmed at the end of the last session and have allowed only five so far this year. In this environment even those reported out of committee by voice vote without any controversy are unable to receive a floor vote for many months if they ever receive one at all.
She provides a recent example from her home state:
Last week, TheNew York Timesrevealed that a disproportionate number of President Obama’s minority and female judicial nominees were rated “not qualified” by the American Bar Association. Out of the 14 nominees that received the rating, just one was a white male.
American Constitution Society Board Member Robert Raben, the president of The Raben Group, called the story “at least welcome, at most desperately needed” in a guest post for ACSblog. Transparency is needed, he explains, to root out practices or biases that may explain “why minorities more than whites seem to crash on the establishment shoals.”
“I have not seen a single Latina nominee who wasn't either hit or slammed by some establishment group -- a bar association, a leader of a not for profit, a bar leader, a judicial committee -- as being ‘intemperate’; lacking ‘seasoning’; ‘inexperienced’, ‘not that bright’, etc.,” Raben writes. “There's a possibility that the entire cohort of Latina lawyers who want to be federal or state judges just don’t deserve it yet, but I'm not buying it. I think there's something else going on, and I think that unearthing what may be going on within the ABA's cloistered process may help us get to the bottom of this.”
In The Daily Beast, University of Colorado at Boulder law professor Paul Campos addresses claims by the right that Obama’s picks were rated “not qualified” at a higher rate than Bush’s or Clinton’s because Obama prioritized affirmative action over merit. Campos provides evidence that “the Bush administration engaged in more aggressive affirmative action when it came to nominating federal judges than the Obama administration has,” given the smaller pool of conservative minority candidates.
Instead, there is another “quite simple” explanation for the higher number of Obama candidates rated “not qualified”, Campos writes: