The racists at the ABA

In the February 2006 edition of the ABA Journal, the official organ of the American Bar Association, ABA President Michael Greco laments in his 'President's Message' the 'under—representation' of women, minorities, and the disabled in the legal profession, and encourages ABA members to volunteer for 'pipeline projects' aimed at increasing the number of children and young adults from 'under—represented' groups who consider pursuing legal careers.

The rationale offered by Greco to support his call to action is that

'[a] more diverse and more representative legal profession not only fosters greater public trust and confidence in the law, but even more fundamentally, it helps ensure fairness in our justice system.' 

What Greco is saying, in essence, is that a white, able—bodied male, like himself, cannot fairly and effectively represent the legal interests of women, minorities, and the disabled.  Based on such 'logic,' it also would follow that female, minority, and disabled attorneys cannot fairly and effectively represent white, able—bodied males.  (Greco is silent as to whether attorneys and clients have to be the same age to 'ensure fairness' in legal representation.)    

Surely, Greco does not actually believe this racist nonsense.  Indeed, I doubt few practicing lawyers — of any sex, color, or condition — do.  For example, even radical lawyer Ron Kuby (a white male) represented black mass murderer Colin Ferguson, and Lynne Stewart (a white female) represented the 'Blind Sheik' Omar Abdel Rahman, before she was convicted of providing material support to terrorists.  I have no doubt that the quality of Kuby's and Stewart's legal work for their clients was outstanding.  Just as I have no doubt that they would support Greco's call for 'a more diverse group of young people' pursuing careers in law. 

In my own experience, I have seen countless numbers of lawyers (myself included) who have fairly and effectively represented clients from 'different' backgrounds than themselves.  The idea that people should 'stick to their own kind' when choosing legal representation is an ignorant and malicious lie.

Nevertheless, this is the thrust of Greco's argument.  Notably, Greco does not offer any evidence that clients are better served by attorneys who share their demographic characteristics (because there is no such evidence).  Nor does he identify any discriminatory barriers to entry that are preventing more women, minorities, or disabled persons from becoming lawyers (because there are no such barriers).  He simply assumes that we need 'a more diverse pipeline of talent' because the legal profession does not perfectly mirror the American population.  Why it should demographically echo the larger society is left unexplained, thereby avoiding troubling implications

For every group that is 'under—represented' in the legal profession, there is another group that is 'over—represented.'  Jews are probably the best example. Jews make up a far larger share of the legal profession than their percentage of the population as a whole (approximately 2%).  So in allocating spaces for lawyers in our society, does Greco believe that fewer Jews (or Asians, who also are 'over—represented') should be allowed to pursue legal careers?  By pure reason he must, because it simply would not be possible to have a 'representative' legal profession — as Greco and most 'liberals' define it — without restricting the opportunities for 'over—represented' groups (Jews, Asians, men, whites, the able—bodied, etc.) to become lawyers.  Not surprisingly, the ABA strongly supports affirmative action in legal education, which is this exclusionary principle put into practice.

Ultimately, however, I do not think that Greco truly believes that black clients can only be represented by black lawyers, or that women clients can only be represented by women lawyers, or that disabled clients can only be represented by disabled lawyers, and so on.  I also do not believe (though I could be wrong) that he would be in favor of excluding 'over—represented' law school applicants from the legal profession altogether, as opposed to limiting the number of spaces available to them at top law schools (which is what the affirmative action debate really is about). 

So why then do he and the ABA so wholeheartedly embrace the 'diversity' mantra? 

The answer, I think, is rather more mundane.  In his column, Greco highlighted the activities of the ABA's new Diversity Center which 'coordinates all ABA diversity efforts.'  Specifically, Greco emphasized the Diversity Center's Legal Opportunity Scholarship Fund, which provides scholarships for 'students of color' to attend law school.  He also pointed to the availability of 'grants for diversity outreach and recruitment' from the Law School Admission Council (which works closely with the ABA).

In other words, Greco's rhetoric about the importance of 'diversity' in the legal profession, although offered in the most idealistic—sounding terms, in practice amounts to little more than a justification for racial or gender or (fill in the blank) patronage.  Moreover, the very impossibility of achieving a 'representative' legal profession, as Greco defines it, means that the proffered reason for this patronage will never go away.  Not that the recipients of this patronage will complain.  For them, and their supporters, the patronage is an end in itself.

Of course, I do not dispute that private individuals and organizations should be free to spend their money and distribute their charity (which is what this kind of patronage amounts to) as they see fit.  If some person or group wants to set up a 'black law student' scholarship fund, that is their prerogative.  My opposition begins when expanding one person's opportunity is accomplished by restricting another person's opportunity, on grounds that have nothing to do with either person's ability to become a lawyer.

Much more corrosive to our national life, however, is the dishonest, even cynical, use of 'diversity' rhetoric by the largest professional legal organization in the country. Suggesting that the quality of one's legal representation depends on the color or gender or physical condition of one's lawyer is a heinous contention with horrible consequences logically foreseeable.  Nothing could be further from the truth. 

And nothing could be more deeply antithetical to the ideals upon which our legal system is founded.

Steven M. Warshawsky is a frequent contributor.  He can be reached here.

In the February 2006 edition of the ABA Journal, the official organ of the American Bar Association, ABA President Michael Greco laments in his 'President's Message' the 'under—representation' of women, minorities, and the disabled in the legal profession, and encourages ABA members to volunteer for 'pipeline projects' aimed at increasing the number of children and young adults from 'under—represented' groups who consider pursuing legal careers.

The rationale offered by Greco to support his call to action is that

'[a] more diverse and more representative legal profession not only fosters greater public trust and confidence in the law, but even more fundamentally, it helps ensure fairness in our justice system.' 

What Greco is saying, in essence, is that a white, able—bodied male, like himself, cannot fairly and effectively represent the legal interests of women, minorities, and the disabled.  Based on such 'logic,' it also would follow that female, minority, and disabled attorneys cannot fairly and effectively represent white, able—bodied males.  (Greco is silent as to whether attorneys and clients have to be the same age to 'ensure fairness' in legal representation.)    

Surely, Greco does not actually believe this racist nonsense.  Indeed, I doubt few practicing lawyers — of any sex, color, or condition — do.  For example, even radical lawyer Ron Kuby (a white male) represented black mass murderer Colin Ferguson, and Lynne Stewart (a white female) represented the 'Blind Sheik' Omar Abdel Rahman, before she was convicted of providing material support to terrorists.  I have no doubt that the quality of Kuby's and Stewart's legal work for their clients was outstanding.  Just as I have no doubt that they would support Greco's call for 'a more diverse group of young people' pursuing careers in law. 

In my own experience, I have seen countless numbers of lawyers (myself included) who have fairly and effectively represented clients from 'different' backgrounds than themselves.  The idea that people should 'stick to their own kind' when choosing legal representation is an ignorant and malicious lie.

Nevertheless, this is the thrust of Greco's argument.  Notably, Greco does not offer any evidence that clients are better served by attorneys who share their demographic characteristics (because there is no such evidence).  Nor does he identify any discriminatory barriers to entry that are preventing more women, minorities, or disabled persons from becoming lawyers (because there are no such barriers).  He simply assumes that we need 'a more diverse pipeline of talent' because the legal profession does not perfectly mirror the American population.  Why it should demographically echo the larger society is left unexplained, thereby avoiding troubling implications

For every group that is 'under—represented' in the legal profession, there is another group that is 'over—represented.'  Jews are probably the best example. Jews make up a far larger share of the legal profession than their percentage of the population as a whole (approximately 2%).  So in allocating spaces for lawyers in our society, does Greco believe that fewer Jews (or Asians, who also are 'over—represented') should be allowed to pursue legal careers?  By pure reason he must, because it simply would not be possible to have a 'representative' legal profession — as Greco and most 'liberals' define it — without restricting the opportunities for 'over—represented' groups (Jews, Asians, men, whites, the able—bodied, etc.) to become lawyers.  Not surprisingly, the ABA strongly supports affirmative action in legal education, which is this exclusionary principle put into practice.

Ultimately, however, I do not think that Greco truly believes that black clients can only be represented by black lawyers, or that women clients can only be represented by women lawyers, or that disabled clients can only be represented by disabled lawyers, and so on.  I also do not believe (though I could be wrong) that he would be in favor of excluding 'over—represented' law school applicants from the legal profession altogether, as opposed to limiting the number of spaces available to them at top law schools (which is what the affirmative action debate really is about). 

So why then do he and the ABA so wholeheartedly embrace the 'diversity' mantra? 

The answer, I think, is rather more mundane.  In his column, Greco highlighted the activities of the ABA's new Diversity Center which 'coordinates all ABA diversity efforts.'  Specifically, Greco emphasized the Diversity Center's Legal Opportunity Scholarship Fund, which provides scholarships for 'students of color' to attend law school.  He also pointed to the availability of 'grants for diversity outreach and recruitment' from the Law School Admission Council (which works closely with the ABA).

In other words, Greco's rhetoric about the importance of 'diversity' in the legal profession, although offered in the most idealistic—sounding terms, in practice amounts to little more than a justification for racial or gender or (fill in the blank) patronage.  Moreover, the very impossibility of achieving a 'representative' legal profession, as Greco defines it, means that the proffered reason for this patronage will never go away.  Not that the recipients of this patronage will complain.  For them, and their supporters, the patronage is an end in itself.

Of course, I do not dispute that private individuals and organizations should be free to spend their money and distribute their charity (which is what this kind of patronage amounts to) as they see fit.  If some person or group wants to set up a 'black law student' scholarship fund, that is their prerogative.  My opposition begins when expanding one person's opportunity is accomplished by restricting another person's opportunity, on grounds that have nothing to do with either person's ability to become a lawyer.

Much more corrosive to our national life, however, is the dishonest, even cynical, use of 'diversity' rhetoric by the largest professional legal organization in the country. Suggesting that the quality of one's legal representation depends on the color or gender or physical condition of one's lawyer is a heinous contention with horrible consequences logically foreseeable.  Nothing could be further from the truth. 

And nothing could be more deeply antithetical to the ideals upon which our legal system is founded.

Steven M. Warshawsky is a frequent contributor.  He can be reached here.