Coming through the mid part of the 20th century, it was very conservative. So, it stood for the status quo. It stood for business interests. And so moving toward increased legalism, or adversarial legalism, or an administrative state that was tied up with a judicial structure, was very much operating hand in hand with an industry that also had a lot of connections with business and was ideologically very favorable to conservative interests, business interests.
So the two interests were really well connected. I think in more modern times the interests of the profession have moved to the left, but the business interests and the professional interests have remained somewhat.
So in terms of where this leaves us, I think now you have a profession that has very strong feelings about the legal procedures and the process of involving legal adjudication in policymaking. This is not something we talk about in our book, but I think now there are conversations happening within legal leads about, for example, whether you should keep appointing corporate lawyers to the federal bench or whether you should actually be looking at public defenders or government lawyers.
And those conversations are starting to happen in a way that points to even a division with a legal ranks around this issue. So how tied up is the industry with these business interests will vary, but people are becoming aware of that and the interests are starting to decouple a little bit.
I would say that this conversation though is pretty recent. So I think as someone who studies the courts separately from this project and does a lot of work on diversity on the courts, I would say this issue of having a more diverse pool of lawyers occupy seats on the bench, on the federal bench, has only been really taking off basically in the last two or three years.
So I would say this is pretty recent, this awareness about how strongly business oriented and how small conservative the profession is. People have only started talking about it, I think, fairly recently. Matt Grossmann: Adam, your chance to disagree, or maybe address this question about at the conference we did have folks arguing, lefty folks skeptical of your measures maybe, arguing that this is a profession that earns its money from representing business primarily.
So what do you think? I think it is a bit complicated by this tension that Maya outlines. They were directed mostly at the type of lawyers who were working at big law firms. Many hundreds or even thousands of dollars per hour. That precludes much of the population.
And I think that this tension is very real, especially among younger lawyers and actually Deborah Rhode had written pretty extensively about how this tension created the type of cognitive dissonance within a profession. It was actually very bad for mental health and it was generating a lot of turnover. So I think it really highlights an important tension within the profession itself.
That I think is something that the profession has been grappling with for a very long time. This was the type of discussion that was being had a century ago, talking about the orientation of the legal profession, that you had this business oriented wing, and then this other function that services public facing profession. And how do you negotiate those two different sides when they are often very much at odds with each other?
And I think the profession in itself is performing a quintessentially conservative role in society, protecting the interests of wealthy interests. And actually we do find that lawyers who work at big law firms are more conservative, on average, than the profession at large, slightly so.
This idea of elitist versus populous politics. And so I think the measures do read out a cultural disposition as well.
It probably is also closer to what we would think as small seat conservative. Matt Grossmann: Maya, you go all the way back to the founding and you mentioned that lawyers were more conservative in the past to the extent that you have measures of the lawyer legislators. They actually were even more, a bigger part of the legislatures in the past.
So, how much has changed? So first of all, the share of legislators who are lawyers has gone down over time, subtly. And so you see that actually in the halls of power when you note that more of the lawyer legislators are actually Democrats now than they are Republicans. And you can see this in our last five presidents. All the Democrats have been lawyers or trained as lawyers and the two Republicans have been business owners in some capacity, or businessmen in some capacity.
But now it is the case more and more that the lawyers are increasingly coming from the democratic ranks and the Republicans are drawing more of their representation from small business owners in other professions. So a huge way in which this has changed is in the desegregated law schools in the 40s and 50s and 60s.
That basically correlates 20 years before with women entering law schools because law school was basically a gateway into politically elite positions, not to mention judgeships.
So now we have majorities of law schools at the elite level are actually majority female now. So you would expect these trends to project forward, one would hope.
Matt Grossmann: And what about the long-term influence issue? So how important is that continued ongoing influence versus the historical influence? Maya Sin: So this is extrapolating from our book, but I think a lot of these things have become deeply embedded in American exceptionalism, or thinking about American exceptionalism. In terms of the counterfactual, what would you do in the absence of lawyers having this power? I think the balance of power is shifting more and more towards small business owners.
Adam Bonica: That all sounds about right to me, in terms of institutions are generally pretty stable things. US has had this very prominent political class dominated by lawyers for a very long time.
So if you look at the Netherlands, for instance, when we looked at a number of lawyers and legislators, there was only one at the time. And so there is this idea that law and politics are really closely connected. You need to have a lot of input from the legal system to properly do politics. And so I think there were a lot of ways to structure your democratic society. And I think over the long term, there would be more pressure pushing towards what would presumably be a little bit more like the European system, where there is government control of regulatory bodies that do a lot in regulatory function.
Whereas in the United States, as Maya had mentioned, much of it is litigated. And so I think there are questions about which is a more effective system of regulation. Adam Bonica: Yes, I think it is. In fact, so the Brennan Center has collected a list of 42 bills that have been introduced since the elections predominantly by Republican state legislators, attempting to do exactly that.
And one of the more sort of really interesting and fascinating parts of the work we did in the book, for us, was just how much institutional variation we see in selection mechanisms and how we pick judges in the states in the US. So we have across the different states, whole different variety of ways that states are selecting judges.
Another thing that you see is that these institutions have changed pretty dramatically over the [inaudible ]. Pretty much every state has modified the way that it selects judges.
Most states doing so repeatedly over the last years. And so this makes it a really fertile ground for, most institutions tend to be very stable. Relative to that, judicial selection seems to be very, very changeable. And actually going back to the history of what are the systems that Democrats are most likely to be protective of right now, are these [inaudible ], where you have basically, usually individuals that are selected both by usually the State Bar Association and then some nominated by the governor and there are a number of systems [inaudible ].
But they essentially look at the list, either create a list of who they think are the most qualified candidates to become judges, or at least assess whether given nomination meets some level of qualifications.
And this system was actually a GOP innovation back in the s when we saw a very different dynamic nationally, where as I mentioned, lawyers at the time were this very conservative group, they were a power base within the Republican Party, one that was very much a thorn in the side of New Deal Democrats and FDR. And basically, the Missouri system, which is what sort of innovated these merit systems was designed to push back against what was seeing is politicization of the judiciary by FDR Democrats.
And it was actually Eisenhower, who was the first president to invite the American Bar Association to rate judicial nominees at the federal level; a Republican who was coming in after a long period of democratic control. And, interestingly, half a century later, it was George W. Bush who decided that that system was no longer working for the public, this idea that we should be judging nominees primarily on the basis of this idea of merit or qualifications.
And this is very much true at the state level. Matt Grossmann: So you imply, or at least the model implies that this all would be reversed if judges were mostly Republicans, but it does seem like the good government groups are more aligned with the Democratic Party generally. So, is this just kind of a partisan dispute, or is there a wider dispute between the parties about whether we should have expert controlled institutions versus direct elections? Adam Bonica: I think you could sort of compare it to debates that are going on over gerrymandering, were Democrats, for partisan reasons, right, so if you were a member of a party, you should be advocating for the interests of your party to at least some extent.
Running for office now entails raising ridiculous sums of money, and fast. Therefore, first-time candidates with powerful fundraising networks are at a tremendous advantage. And going to an elite law school gives you access to an impressive fundraising network, since graduates of elite law schools tend to be very rich. Second, success in fundraising early is seen as a crucial test of a campaign's viability by donors outside the candidate's personal network On the other hand, even the most compelling candidates will struggle to keep pace if their personal networks are devoid of anyone who fits the typical profile of a political donor.
Moreover, to raise money from very rich people means focusing on issues and positions that rich people want to support. Rich people, for example, are not interested in wealth redistribution or taxing the rich more, even if most voters are. In short, running for office these days requires that many very wealthy people both know you and like you. Of all the professions, lawyers, especially those from elite law schools, are by far best positioned to do this. That's because they are most likely to be both rich themselves and connected to other rich people.
Consider, for example, the following chart from Bonica's paper, which looks at the fundraising of non-incumbent candidates in their first 90 days. It's pretty clear that lawyers, especially those with elite law school degrees, blow everyone else away in this crucial metric of early fundraising. And as Bonica notes, the candidate with more money in a contested primary wins 79 percent of the time. Bonica argues that lawyers contribute to inequality by enabling tax loopholes and marginalizing the need for affordable legal services, and says that "the legal system has been increasingly implicated in driving inequality.
Singling out lawyers is also a way to highlight a deeper structural issue in our politics, which is that it's very hard for candidates who are not personally wealthy and don't know other wealthy people to run for offices, and lawyers are just disproportionately likely to glide among the networks of concentrated wealth. Here's another directly observable consequence of this narrow, gold-plated pipeline to public office: More than half of members of Congress are now millionaires.
Carnes has done considerable research examining the consequences of members' backgrounds. And it turns out that members' backgrounds do shape their perspectives. Writes Carnes: "Former businesspeople in government tend to think like businesspeople, former lawyers tend to think like lawyers, and the few former blue-collar workers tend to think like blue-collar workers.
But there are very few blue-collar workers in politics. They don't run, because, unlike rich people, they can't raise the money. And they can't afford to take time off to run, either. These are not new problems. Carnes sent me the following graph, which shows that workers have always been underrepresented.
Both Bonica and Carnes makes a pretty compelling case that a candidate pipeline privileging wealthy, elite lawyers and businessmen also privileges the friends and associates of wealthy, elite lawyers and businessmen, and thus exacerbates inequality.
This leads both to conclude that maybe we need a new pipeline to public office. Both have similar promising ideas about how to create one. Carnes proposes "seed money" for aspirants who lack the initial startup Rolodex to tap for money. He argues, "Increasing the economic diversity of our governing institutions will probably require interventions that aren't currently part of the standard political equality reform playbook, like seed money and candidate recruitment programs that target lower-income and working-class people.
He looked at the decline over the years of lawyers in the US Congress. His first principal conclusion is that the dominant presence of lawyer-members of Congress for so many years has helped foster the centrality of lawyers and courts in the US.
This characteristic is still strikingly obvious to outside observers. His second main conclusion is that the nature of the judiciary has changed because there are fewer politician judges.
The judiciary has become more technocratic, and as a result maybe less independent. Judges may now therefore engineer their decisions to show a particular political philosophy for the purpose of future advancement. The decline of the lawyer politician in all branches of government may undermine these governing norms: whether it is fewer politicians that are immersed in the language of rights and due process or fewer judges that are savvy to the world of politics.
Take note, Spectator. All views expressed are personal and do not necessarily reflect the views of the Law Society Council. Being a Council member is like being a passenger on a crowded ocean liner: either yelling to point out the beautiful island, or the icebergs which loom ahead.
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