Terra Extraneus

Lawyers are sometimes hypocrites. It would be okay for the board of the American Bar Association to spend lawyer and law firm dues on expensive meetings and meals but if the Legal Services Corporation, which in part survives on contributions from lawyers and in part on funds allocated by the Congress, serves something better than diet soda and Subway sandwiches at a board meeting, there are lawyers that will criticize the Legal Services Corporation, but not the ABA. The reason, of course, is that the LSC represents poor people and prejudice against the poor permeates the legal profession as it does most other layers of society.

The Legal Services Corporation, a governmental corporation which provides free legal services to the poor in the United States, was reported by CBS and AP as guilty of spending exorbitant amounts on meetings of its board of directors, exorbitant amounts on travel expenses for its officers, and abuse of expense accounts. My summary of the news allegations makes them sound more impressive than the allegations themselves actually were.

CBS and AP, on a slow news day, alleged they had a “whistleblower” that confirmed “tax dollars [were] used for questionable trips to foreign countries ….” Certainly, no Congressman has ever been accused or guilty of that! The LSC does attend an international conference on providing legal services to the poor every other year and has been doing so since 1994. Surely, a GAO audit would have discovered it at least once during the six prior trips during the prior twelve years.

CBS and AP alleged that officers of LSC were traveling in first class. That was true. It happened once in the last three years when on short notice Congress summoned an officer to testify. Are Congressmen unaware that if they summon an officer of a governmental agency on short notice that the only seat available might be in first class? Does the Congress allow people it summons to testify to fly stand by and forgive them if they are late or keep the Congressmen waiting?

CBS and AP alleged that LSC’S governing board, composed largely of lawyers, met in “resort spots like Puerto Rico ….” One board meeting was held there, but LSC is required to provide services there and the board tries to conduct its meetings where it is required to provide services, so eventually, the meeting would have to be conducted in Puerto Rico. LSC claimed it was the only board meeting ever held there, where LSC claims 45% of the population lives in poverty.

Each allegation was answered in similar fashion and can be reviewed completely here. The gist of the allegations was extravagance. Any expense that seemed to be more than diet soda and Subway sandwiches was extravagance. If the one tenth of one percent of LSC’s budget used on board meetings was so extravagant, why didn’t the ABA donate the price of one of its board meetings?

What amazed me was how quickly lawyer bloggers, see one here, picked up and endorsed the allegation without considering LSC’s response (it is not mentioned or linked in any of the posts I saw as of Friday night) or the extent to which the allegations by CBS and AP were clearly overstated and the actions of LSC condemned without comparison of those actions to objective criteria. The allegations were not compared to GAO audits or reports on LSC. Indeed, CBS and AP acted as if they were unfamiliar with governmental budgetary controls on the federal level.

Or, was it that they acted as if they did not care? Were they catering to the prejudice against the poor? Did the lawyer bloggers likewise react driven by prejudice?

Certainly, LSC is not perfect; what governmental unit of that size and complexity could be? If these allegations are the best the news media can come up with, then LSC is better run than many governmental agencies. If the response by lawyer bloggers cannot be better than traditional news media, then why are the lawyers reporting it? What are they adding to the discussion except a knee jerk reaction based on poverty prejudices? I do not know many lawyers that would donate their time to serve on a board that required travel and a serious time commitment that would not feel slighted if at least reasonable creature comforts were not provided.

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Since this post, the debate has continued on the blog sites linked above. One thing that colors my own view is my years of service on non-profit boards and public school boards of education. Adding all my years together, I have spent fifteen years on secular boards and about as many on church and ministry boards. I have served in one elected board position. I have served on as many as five boards simultaneously, all without compensation or without material compensation (one board provided a stipend for travel reimbursement) and I was out of pocket on all of them to one degree or another. I did not mind because I thought the mission or the ministry was worth it. I never received any business as a result of any engagement, wtih one minor but interesting exception. I cannot imagine being responsible as a board member for an organization as large or controversial as the LSC on such shoestrings as required by my board engagements. I am presently serving on no boards anywhere.

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We are familiar with the public’s increasing perception that we have a “runaway court system” in which judges make law rather than interpret law. Nancy Pearcey, a Christian scholar whom I respect, writes:

If the courts make law, then why do we need legislative bodies? The courts would become a law unto themselves, which is precisely the monopoly of power that the separation of powers was designed to prevent. Restoring the separate functions of each branch of government is the surest institutional protection of American liberty.

However, there is another side to the judiciary debate. Do we really want judges to render decisions based on the majority view? Are there times when the majority is wrong? Sometimes it is the job of judges to protect our nation from the majority, ensuring that the majority does not run roughshod over our Constitution and laws.

Lauren Nyren is a communications staffer at the Justice At Stake Campaign. Nyren wrote by email to Terra Extraneus:

I read your blog pretty regularly and I thought this piece my boss wrote for Slate might be of some interest to you guys.

Lauren’s boss is Bert Brandenburg, executive director of the Justice at Stake Campaign, based in Washington, D.C. According to Justice At Stake’s website: “Our mission is to … work for reforms to keep politics and special interests out of the courtroom — so judges can do their job protecting the Constitution, individual rights and the rule of law.” The JAS campaign is supported by the American Bar Association, Association of Trial Lawyers of America, American Board of Trial Advocates, American Judges Association, and many other organizations.

A primary theme of the Justice At Stake Campaign is “judicial independence”:

The threat to fair and impartial courts — and judicial independence — is growing.
• Special interests are spending millions to influence decisions and elect judges to serve their narrow interests, not the public interest.
• The cost of judicial campaigns is skyrocketing, forcing judges to raise money like politicians — and people believe that justice is for sale.
• Misleading and partisan attacks on judges’ decisions are bringing politics into the courtroom.

I read Brandenburg’s Slate article. One comment that caught my eye is his warning to judges that they will not succeed against “court-bashers” by ignoring the public’s legitimate desire for accountability behind the bench.

Court-bashers have been busily framing their anger in accountability terms that resonate with American values. That’s why wishing away the accountability debate is a huge mistake. Independent courts have always coexisted with American populism, and citizens of all stripes are right to insist that courts must be accountable. The judicial establishment can’t afford to treat ordinary Americans like ignorant cousins at the family picnic. Judges are the sleeping giants in the national debate over the courts, and if they don’t wake up soon, they’ll find themselves lashed down.

As for Terra Extraneus’ stand on judicial independence vs. judicial accountability, I will leave it to my colleague here at TerraX to share his thoughts, if he is so inclined. Mr. Heggy has several decades of experience as a trial lawyer.

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