Legally Speaking

Dennis W. Archer, president of the American Bar Association, talks about a variety of pressing matters being debated across the country and in Washington, D.C.

Last year, Dennis W. Archer approached a podium flanked by Cecilia Marshall, U.S. Supreme Court Justice Thurgood Marshall's widow, and Sen. Hillary Rodham Clinton (D-N.Y.). Their presence was symbolic, he says. Marshall represented her husband, who, among many accomplishments, successfully argued the 1954 Brown v. Board of Education desegregation case before the Supreme Court. Later he would become the first Black to sit on the high court. When Clinton was first lady of Arkansas, she served as the first chair of the American Bar Association's Commission on Women in the Profession at the same time that Archer was the first chair of the Commission for Opportunities for Minorities.

"She (Clinton) was knocking down glass ceilings, and I was trying to open up doors for ethnic minority lawyers," he says.

The two women joined Archer, the former mayor of Detroit, as he was about to accept the position of president-elect of the ABA. When he stood before the ABA, he put the moment in perspective.

"I said that I stand on the shoulders of giants that came before me," Archer recalls. "I think today about Charles Hamilton Houston, Bill Hastie, Constance Baker Motley, Damon Keith, so many others, and obviously Mr. Justice Thurgood Marshall. And I also think about how for so long the American Bar Association would not allow Black lawyers, or lawyers of color, to join."

Archer's stride to the podium symbolized coalition building and opportunity, two themes he intends to make a priority during his tenure. After a year of serving as president-elect, Archer officially took over as head of the ABA on Aug. 12. he is the first Black to serve as president of the more than 400,000-member organization founded in 1878.

He has come a long way. Born in Detroit, when Archer was 5, the family moved to Cassopolis, in rural southwestern Michigan, where his father took care of the summer home of a White man who owned a tool-and-dye shop in nearby South Bend, Ind. The Archers didn't have a lot of money, so their only son started working when he was 8. His first job was as a caddy on a golf course. Archer also set up pins at a bowling alley.

Years later, he woke early in the morning and walked a mile down the town's main street to the bakery. "I would sweep the floor, mop it, go back home, get in the bed, sleep for about another hour, then go to high school," Archer recalls.

Archer also worked his way through college. After graduating from Western Michigan University, he taught learning disabled children in the Detroit public school system and went to Detroit College of Law at night.

After law school, he became a trial lawyer and a law professor, and began a lifelong participation in several national and local law associations. In 1985, he was appointed as an associate justice to the Michigan Supreme Court. he was elected mayor of Detroit in 1993 and served two terms during a period of great economic expansion.

In a December 2001 article assessing his eight years in office, the Detroit Free Press described Archer as a "peacemaking bridge-builder to the suburbs and a mayor who got people to reinvest in the city, through the business community and foundations."

With Archer at the helm, Detroit began to recover from the downsizing of the auto industry. Crime fell gradually under his watch, and Detroit began to regain some of its former greatness as businesses began pouring millions of dollars back into the city.

Archer, whose wife, Trudy DunCombe Archer, is a district court judge in Detroit, has an ambitious agenda for the ABA in the coming year. he recently convened a summit of lawyers of color and there are plans for a similar gathering for women, as well as a series of activities around the 50th anniversary of the Brown decision. Archer, who intends to continue to open doors and influence legal history, is also proud to report that Robert J. Grey Jr., an African American lawyer from Richmond, Va., is the current president-elect and will assume leadership of the ABA when Archer's term ends in August 2004.

Archer, 60, spoke with The Crisis in October about a variety of pressing legal issues, including preserving civil liberties in the wake of Sept. 11, judicial nominations and Attorney General John Ashcroft.

CRISIS: Supreme Court justice Sandra Day O'Connor included language in her University of Michigan opinion stating that in 25 years affirmative action should be, or will be, unnecessary. What is the significance of her message?

Dennis Archer: That message was not to Blacks and other people of color, rather that was to, in my view, those who have been in a position to do something about it. Here's what I mean.

A friend of mine is a former mayor of Wichita, Kansas. he happens to be White. His name is Robert Knight. He also happens to be a Republican. he was the president of the National League of Cities. For his year (as president], his theme was undoing racism, and [he] felt that there ought to be a dialogue on race. What Bob Knight said, was that racism was not started by Blacks and therefore it was not the responsibility of Blacks to solve the problem or to undo it. Rather it was [up to] Whites. So when I read the opinion, I thought back to my friend Robert Knight.

What are the people in the current majority going to do to make sure that race would not be needed as a factor? It means, in my mind, you've got to have an excellent public school educational opportunity. You've got to be able to provide good economic opportunities for people who want jobs to be able to get them. And the standard of living has got to be increased for people of color so that they have every equal opportunity to compete. Then I think we have every opportunity to succeed. If not, we will be back at the courthouse [in 25 years] making our case as to why race is still needed as a factor.

How would you describe the tenure thus far of Attorney General John Ashcroft?

Let me put it this way, the great thing about America is that we, as a society and as a people, or in this case, as a legal profession, have a right and opportunity to disagree. Whenever Attorney General John Ashcroft proposes a set of rules or recommendations that is inconsistent with the United States Constitution, federal case law and statutes, the legal profession, and in particular the American Bar Association, among others, will step up and share their views. And so the American Bar Association has respectfully disagreed with Attorney General Ashcroft from time to time. And I'm delighted to say in most instances the attorney general has modified the proposed rules under consideration. That is about as far as I will care to go.

Can you give an example of something that the bar association has disagreed with the attorney general on that he has revisited?

Military tribunals (trying suspected terrorists in military courts rather than civil courts). We dealt with that in February 2002, I think. They didn't do everything we asked, but they did modify. They made some changes in their regulations. The proposal to have military tribunals was very broad and not sharply focused, and we felt that it violated the United States Constitution. We pointed out the areas we thought were overly broad and in some instances vague. And they went back and made some changes.

Ashcroft recently asked prosecutors to keep a record of judges who hand down lenient sentences. he also wants them to appeal more of these sentences. Has the ABA weighed in on this action?

It is ironic that this year is the 200th anniversary of the Marbury vs. Madison [case], wherein it was decided, by case law, that judges were to be independent. What you want when you go before the bar of justice is to have an independent judiciary free from any intimidation, free from any threats, to be able to rule on the facts according to the law as applied to those facts. That's what makes our country great, an independent judiciary. And so when Attorney General Ashcroft, in the exercise of his responsibility, appears to some, many, or most, depending upon who you talk to, to intrude upon the independence of the judiciary, many feel that he has crossed the line and that is most inappropriate.

Supreme Court justice Anthony Kennedy addressed this issue before the American Bar Association at your annual meeting. What did he have to say?

He asked the bar association to look at several issues. Whether the time has come to repeal the mandatory sentences, thereby returning to the federal judges, discretion as to how much time a person should spend behind bars.

Next he said we should look at the issue of sentencing guidelines. Not for the purpose of getting rid of sentencing guidelines, because he feels that they have an excellent place in making sure there's some uniformity in sentencing. he felt that we should look at whether the minimum sentencing in the sentencing guidelines should be further lowered, thereby again giving to the judge the discretion.

Moreover, he pointed out that 40 percent of the 2.1 million people incarcerated happen to be African Americans. he invited us to ask the question, and to look into why that happens to be the case. What he did not say is that Hispanics represent between 23 and 25 percent and thus you have Blacks and Hispanics representing between 63 and 65 percent of the prison population.

Next he invited us to take a look at our nation's federal and state prisons to find out once a person is in prison to pay their debt to society for the crime they've committed, what goes on? Are they rehabilitated? Are they given an opportunity to learn a trade? Or do the prisons further strip them of their dignity, their [humanity] and cause them, when they are released, to be the kind of person who will ultimately return to prison because of crimes they will commit?

Lastly, he invited us to take a look at how pardons are being utilized by governors and the president. The ability to commute a sentence was put there for a reason. How are they being exercised? Are they being exercised fairly? Are they being used at all? And if they're being used, how? And if they're not being used, why?

Is the ABA still involved in judicial nominations?

The American Bar Association, as you might recall, was advised by President Bush - which is his right - that he was no longer going to do what other presidents had done - starting with President Dwight D. Eisenhower, who happened to be a Republican as well. They gave the names of persons that they were going to nominate to the American Bar Association before they were released to the public and to the Senate judiciary Committee, so that they might be evaluated and [let] that evaluation be known to the president. After the President went forward with the name publicly and to the Senate judiciary Committee, then the American Bar Association's evaluation would then be known.

But when he (Bush) made the change, the then-ranking Democrat on the Senate judiciary Committee, Senator [Patrick] Leahy, said that they nevertheless wanted the American Bar Association to continue to evaluate the nominees of the president.

Since that time, however, the President of the United States, as well as Senator Orrin Hatch [R-Utah], the chair of the Senate Judiciary Committee, have found that the American Bar Association's Federal Judiciary Committee has been doing a very fine, if not outstanding, job. And so the American Bar continues to do its work [on judicial nominations].

The ABA is working directly with the White House on nominations or with the Senate?

The Senate. Although the White House has been very favorable in their response to the work that we've done.

Many African Americans have lost their right to vote due to the fact that they've been convicted of a felony. What would you like to see done to address this issue?

My own congressman, John Conyers from Detroit, has been one of the leaders among many working to restore the vote back to those who have been incarcerated and have paid their debt to society. The American Bar Association, I believe, has a policy on that, which also agrees, and I'm pleased to see that there have been several states already that have moved forward to restore their voting rights. So there is some movement afoot. And I would hope that after a person who has paid their debt to society, that they would be able to have their voting rights restored.

Racial profiling was a big issue at the end of the Clinton Administration. African Americans are still targets of racial profiling, but the push for some kind of executive order has died out and focus on the issue seems to have shifted to the Arab American community.

First of all let me just say that there was ample evidence that there was racial profiling. Racial profiling got to he front and center, so much so that there there was a bill before the House and the Senate that was going to require accumulation of data by law enforcement as to who was stopped, their ethnicity and the like, in an effort to see whether there was a disproportionate stopping of people of color.

It died down because of the horrible attack that occurred on our soil. And so since the world found out that the people who perpetuated those crimes came from the Middle East, then the focus of the profiling was more, as you pointed out, against those of Middle Eastern descent.

What I found to be interesting here in the city of Detroit - because the Sept. 11 attack occurred while I was still mayor - is that a member of the Jewish community, who had been working with the Arab community for years, stood up and said, "Don't profile these men and women. These are folks that we know, they go to school with some of our children." Blacks said the same thing and stood up with the Middle Eastern community.

So you do not hear much about racial profiling as we did before, because I think there's an appreciation by law enforcement that this is something that's not going to be tolerated - that lawsuits will be filed. It will be a costly and embarrassing kind of allegation.

You've said that we need to pursue the war on terror, but do so the American way. What does that mean?

What I have said is that we've been attacked on our own soil. We are in a war against terrorists. But in our fighting of that war against terrorism we should not give up our democracy. We should not give up our civil rights and our feedoms. That is what makes America great. There are some infringements that all of us have conceded to. For example, I make sure that when I go to the airport now that not only do I wear clean socks, but I wear socks with no holes in them. (Laughs)

But we've got, for example, the USA Patriot Act. Part of that act in giving additional powers was a requirement that they must, whether it's the attorney general or whomever, report to Congress as to how the act is being used and has been used. In the act there is a sunset provision that says this act will expire on Dec. 31, 2005. Right now there is a bill in Congress that would repeal that language, meaning that it would stay there forever, or until someone would make a move to repeal it.

There may be a justifiable reason for continuing the Patriot Act and to taking out the sunset provision, and there may be good and valid reasons for even strengthening that act, but a case has not been made before the United States Congress. The time has come for the attorney general and others to go before the United States Congress to make their case as to why the Patriot Act needs to stay as it is and perhaps even be strengthened. If they fail to follow the law, the American Bar Association has said, then the [sunset] provision should remain in the Patriot Act and it should not be repealed.

What are your plans after the ABA?

Traveling as much as I do, when I think about what I might do afterward...I am just going to sit down somewhere and get some rest.

Any plans for elective office?

I am going to tell you something. Having the privilege of serving as mayor for eight years, and serving on the Michigan Supreme Court for five, I've had my opportunity to be engaged in public service. I respect anyone, I won't say anyone, but I respect those who are in public office and whose views I share, who seek public office. So when I finish my responsibilities as president, I intend to help candidates that I respect. I will raise money, write checks. I will campaign for them. But I don't have any interest or desire or thought about any elective or appointed office.

Brian Gilmore is a lawyer and poet in Washington, D.C.

Copyright Crisis Publishing Company, Incorporated Nov/Dec 2003
Provided by ProQuest Information and Learning Company. All rights Reserved