Bench Memos

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ABA Committee Member John A. Payton


John A. Payton, a partner with the WilmerHale law firm in D.C., is the Federal Circuit member on the ABA committee.  This is more than a tad peculiar, as there is nothing in his firm bio to indicate that he has extensive (or indeed any) experience with patent or trademark issues or the other matters that fall within the specialized jurisdiction of the Federal Circuit.  But what Payton does have is a strong record of partisan attachment to left-wing causes.  Some examples:


1.  Payton is a board member, and former co-chair, of the Lawyers’ Committee for Civil Rights Under Law.  In January 2006, the Lawyers’ Committee board (evidently including Payton) issued a statement opposing Samuel Alito’s nomination to the Supreme Court.  (This statement probably explains the mystery of the ABA committee member who recused himself from taking part in the committee’s evaluation of Alito.  Update (6/9):  My speculation is wrong, as I explain in point 2 here.)  In September 2005, the Lawyers’ Committee stated that it could not support John Roberts’ nomination as Chief Justice.  (As I understand it, Payton was not yet on the ABA committee when it evaluated Roberts.)  Previous “action alerts” from the Lawyers’ Committee (to cite just a few) called for senators not to confirm Alberto Gonzales’s nomination as Attorney General, to oppose the federal marriage amendment, and to oppose John Ashcroft’s nomination as Attorney General.


2.  Payton’s political contributions have uniformly been to Democrats, including John Kerry ($2000 in 2004), Paul Wellstone, Barack Obama, and the Democratic National Committee ($1000 in October 2004).


3.  In a 2005 commencement address, Payton decried the “serious erosion of fundamental legal rights that we cherish and promote as Americans” that has supposedly taken place since 9/11 under the Bush administration.  Among other things, he contended that the “interrogation techniques at Abu Ghraib” were “much more deliberate and calculated” than the booing of a lefty commencement speaker a few years before.  (Payton accurately described the United States as “an imperfect democracy”—there will never be a perfect one—but his standing to complain is somewhat undercut by the fact that, as reported in 1993, “he had not voted in the last 16 years.”)


4.  Payton was lead counsel for the University of Michigan in the twin racial-preferences cases decided in 2003.  Although I am generally disinclined to assign much partisan weight to work that an attorney does as a litigator, Payton’s passionate commitment to the cause of racial preferences is clear.


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