The Politics of Justice

Attorney General and the Making of Government Legal Policy

Cornell W. Clayton

• Publisher: Routledge
• Year: 2015
• ISBN:
  9781317455325
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

First Published in 2015. This series on American Political Institutions and Public Policy intends to examine contemporary U.S. political developments and to discern their impact on issues of public policy. Cornell W. Clayton's The Politics of Justice: The Attorney General and the Making o f Legal Policy is the second publication in the series. It is a fascinating study of politics and governance: how one government affects the other and how both affect public policy. Surveying the historical evolution of the office of the Attorney General, Clayton sees significant recent changes in the role, position, and influence of the person who holds that office.

The POLITICS of JUSTICE

1

Introduction

On March 4, 1789, the first Congress of the United States convened in New York City. The meeting can aptly be described as an extension of the Constitutional Convention itself; many of the same participants were present, and the task they confronted was to complete the construction of the government initiated under the document recently ratified by the several states. During the course of the summer, Congress fashioned the contours and character of the executive and judicial branches of the new federal government. Among the measures enacted at the end of its first session was a bill providing for a “meet person, learned in the law, to act as Attorney General for the United States.”

For more than sixty years, the U.S. Attorney General’s position was only part time. Incumbents maintained private law practices in addition to their official duties. It was not until 1870 that Congress created a law department to assist the Attorney General, and not until the 1920s that the Justice Department began to take on its modern bureaucratic structure. The Department of Justice—the institutionalized Attorney General—has since grown enormously. Today its budget is nearly $7 billion, it employs more than 80,000 persons, and it has law enforcement responsibility in virtually every area of American public life.

Despite the size and power of the department he or she administers, the Attorney General would not capture the public’s imagination if not for the fact that the government’s legal policy in recent decades has become the subject of intense partisan debate. Attorneys General have increasingly found themselves the target of scrutiny in the popular press and congressional investigation, as well as the subject of campaign rhetoric. For better or worse, the names of many recent Attorneys General—Edwin Meese, Griffin Bell, John Mitchell, Ramsey Clark, Robert Kennedy—have become widely recognized by the general public.

The controversies that have surrounded recent Attorneys General present a marked contrast to the relative obscurity in which the office operated throughout most of its existence. Prior to the 1930s, government legal policymaking was generally viewed as a “legal” rather than “political” enterprise. Attorneys General were known to a relatively small number of academic lawyers and law enforcement professionals. Perhaps nothing illustrates the changing nature of the office as much as the confirmation process. Before the 1950s, public hearings were not even held. When President John F. Kennedy appointed his brother Robert Attorney General in 1961, the first special-interest group appeared at a confirmation hearing. By the time Congress confirmed Griffin Bell in 1977, some thirty-three separate interest groups appeared; when Edwin Meese was confirmed in 1986, more than fifty interest groups testified at the hearings.

The transformation in the conventions and perceptions that define the Attorney General’s role as the government’s chief legal policymaker, however, are symptomatic of more fundamental changes in the American political system. The twentieth-century metamorphosis of the federal government from a limited to a positive state greatly magnified the tensions inherent in our system of separated powers. This development, coupled with the erosion of American political parties and the regularization of split-ticket voting in the post-1968 period, has altered fundamentally the style of American politics. While the operations of nearly all major political institutions changed, the central role that “the law” plays in the constitutional system put particular stress on the legal policy establishment.

The impact of these developments on the Attorney General’s office became apparent as Presidents increasingly began to view the Department of Justice as a partisan instrument for effecting their policy agenda. President Franklin D. Roosevelt used the Justice Department to carry out an attack on the Hughes Court to keep it from interfering with his New Deal policies. In the wake of the court-packing plan in 1937, President Roosevelt and his successor, Harry S. Truman, appointed the next thirteen Supreme Court justices. The new members of the Court embraced a New Deal jurisprudence which, following the lead of the executive, permitted government regulation in the economic sphere, but placed greater restrictions on government intervention in the cultural or noneconomic one.

The shift in the Court’s jurisprudence that took place during the 1940s set the stage for an alliance between the executive and judicial branches that during the next two decades liberalized American public policy. While conservative, southern Democrats dominated Congress, Presidents began turning to the courts as an alternative forum to achieve policy goals, especially in areas such as civil rights and criminal justice reform. In sharp contrast to the 1930s, the Justice Department during this period actively encouraged courts to resolve political disputes and supported expansion of judicial reliefs. The Justice Department’s briefs in cases such as Henderson v. United States (1950), Brown v. Board of Education (1954), or Baker v. Carr (1962), urged a jurisprudence diametrically opposed to the one it supported in cases twenty years earlier. The department also supported the Court’s policy innovations through rhetoric and legislative proposals.

By 1968, the Justice Department’s activist alliance with the judiciary had become so controversial that Republican candidate Richard M. Nixon made an explicit campaign promise to appoint a new Attorney General if elected. The promise was noteworthy, not because Nixon would carry it through—any incoming administration would be expected to appoint a new Attorney General—but because it reflected how politicized and partisan the office had become. American voters elected Nixon, and he appointed his campaign manager, John Mitchell, to head the Department of Justice. Mitchell immediately set out to reverse departmental policies. He attacked judicial activism in a series of speeches, and in cases such as Swann v. Charlotte-Mecklenburg Board of Education (1971) he had the department file briefs urging the Court to restrict its scope of constitutional authority and limit its remedial power. The Justice Department’s policy positions in a variety of controversial areas such as school busing and Fourth Amendment search-and-seizure were reversed. And the department played a large role in the Nixon administration’s efforts to centralize control over the administrative bureaucracy, helping to screen agency access to the courts.

The ignominious end to the Nixon administration, brought on by Watergate, forced a public reappraisal of presidential power, especially the desirability of White House domination of the administrative state. The Nixon administration’s use of impoundment power, budget centralization techniques, personnel screening practices, and selective enforcement strategies in order to bypass Congress’s policymaking authority, led historian Arthur Schlesinger, Jr., to write in 1973, that “the pivotal institution of American government, the Presidency, has got out of control and badly needs new definition and restraint.”¹

Arguments for “depoliticizing” the administrative bureaucracy appealed particularly to those who wanted to reform the Department of Justice, which had been severely damaged by revelations of its involvement in the Watergate coverup. Upon taking office, Presidents Gerald R. Ford and Jimmy Carter promised to restore political neutrality and professional integrity at the Justice Department. Both appointed Attorneys General (Edward Levi and Griffin Bell respectively) who eschewed partisan politics and instituted administrative reforms aimed at buffering the department from direct White House interference. Congress also intensified its oversight of the department and even considered severing Justice from presidential control by limiting presidential removal authority over the Attorney General. Lawmakers rejected this plan for radical surgery, though they enacted a less ambitious reform in 1978 by creating the independent prosecutor’s office.

By the late 1970s, however, the zeal for grand institutional reforms was on the wane. The dismal performance of the Carter administration forced a new assessment of the presidency. By the 1980 election, fears of an “imperial presidency” had dissipated, and President Ford’s warning that the presidency had become seriously “imperiled” had emerged in its place. In this environment of executive resurgence, Ronald Reagan moved to reassert political control over the administrative bureaucracy. The Reagan administration’s conservative social policy agenda and its deregulatory economic philosophy made the Justice Department a key element in its strategy of governance. The boast by Terry Eastland, Assistant Attorney General for Public Affairs during the Reagan years, that “no administration has thought longer and more deeply about law since that of FDR, and we have thought more deeply than that administration,” was no overstatement.²

Edwin Meese’s unabashed partisanship while serving as Attorney General provoked unparalleled controversy. During the President’s first term, Meese had served as the ideological alter-ego of the Reagan White House. From his position as White House Counselor, he engineered many of the controversial changes in government policy associated with the “Reagan Revolution,” and it came as no surprise that his nomination in 1984 to be Attorney General drew sharp reaction. Meese’s confirmation came only after a year-long debate in the Senate Judiciary Committee and a separate investigation by the independent counsel’s office.

Under Meese’s direction, the Justice Department intensified its selective enforcement strategies, refusing to prosecute under statutes which it opposed. In litigation, it abruptly abandoned legal positions the federal government had advocated for more than two decades and asked the Court to overturn precedents in wholesale fashion. In his speeches, Meese lashed out at the Court’s jurisprudence, arguing it should use a standard of “original intent” and challenged the Court’s authority as final arbiter of the Constitution. So sharp was his rhetorical assault, that several members of the Court took the unprecedented step of responding publicly to his criticisms.

The controversy surrounding the Reagan Justice Department came to a climax in 1987, when the administration’s nomination of Robert Bork to the Supreme Court was defeated in a dramatic Senate showdown.³ The following year, embattled in the press, the subject of a second investigation by the independent counsel’s office, and faced with evaporating support within the administration, Edwin Meese resigned. The appointment of Richard Thornburgh, a moderate Republican and former Governor of Pennsylvania, at least temporarily reduced the level of controversy engulfing the Justice Department. Nevertheless, the reverberations of the Reagan administration’s politicization of the department are still being felt.⁴ The Attorney General became an issue during the 1988 presidential campaign when Democratic candidate Michael Dukakis pledged to “appoint an Attorney General who knows what justice is.”⁵ Congress’s heightened scrutiny led to the rejection of two Bush administration nominees to fill high-level posts in the department.⁶ And fearing another Bork-style confirmation battle, in 1990 the administration nominated to the Supreme Court a virtually unknown jurist, David Souter, who had little federal experience and no political background.⁷ All of this is symptomatic of how politicized the process of making legal policy has become in the United States.

This book sets out to explain the nature and causes of this development, the controversy it has created, and its impact on the institution at the head of the legal policy bureaucracy. Three factors are critical to that explanation. First, the institutional evolution of the Attorney General’s office from an elite barrister, perceived as a judicial institution, into an administrator of a massive executive branch bureaucracy has left fundamental tensions in the office’s role. Second, the acceptance of more integrative modes of political jurisprudence and the growth of interest group litigation have led to the judicialization of larger and larger areas of public policy. This in turn has created a more politically autonomous judiciary and increased the importance of litigation and judicial selection as instruments of presidential policymaking.

Third, because Democrats have tended to control Congress and Republicans the White House, since 1968 there has been a tendency for policy disputes to be transformed into institutional conflicts over constitutional powers. The conflict has been further exacerbated by reforms inside Congress, which have led to a more liberal brand of Democratic leadership and by reforms in the presidential nominating process, which increased the influence of the conservative wing of the Republican party. This polarization of ideology, both within and between the two elected branches, has had dire consequences for democratic control of public policy. Presidents have increasingly relied on administrative strategies of policymaking, while Congress has increasingly sought to “micro-manage” administration. The result is a new style of administrative law: one in which the judiciary is more intricately involved in the administrative process, and where control over agency litigation becomes an important lever for bureaucratic management.

Apart from understanding the recent controversy, there is another reason why a study of the Attorney General and the Department of Justice is valuable at this juncture. Scholars of American government have long recognized the importance of the separation of powers. Yet, in an era of electoral dealignment and party weakness, the institutional friction inherent in the separation of powers is greatly magnified. The result is a political system less democratic and more prone to legal and administrative conflicts.⁸ The expanding role that the courts and the legal bureaucracy play in making public policy illustrates the degree to which a new set of institutional relations has emerged in the United States. Although this book is not intended primarily as an analysis of the peculiar strengths and weaknesses of the American system of government, focusing on the changing role of the Attorney General may yield insight into general developments and problems in constitutional government in the United States.

Because the study of federal legal policy straddles the disciplines of law, politics, and public administration, few scholarly studies of the subject exist. A smattering of general histories of the Justice Department and a handful of biographical sketches provide a rich source of detailed information on the activities of particular Attorneys General.⁹ These accounts, however, offer little in the way of systematic treatment of the subject. Only three studies of a systematic variety exist: a short monograph entitled Role of the Attorney General, published in 1968 by the American Enterprise Institute;¹⁰ The Jurocracy, a 1976 study by Donald Horowitz examining Justice Department litigating relations with other federal agencies;¹¹ and “The President, the Attorney General ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• List of Figures
• Foreword by Stephen J. Wayne
• Acknowledgments
• Attorneys General of the United States
• 1. Introduction
• 2. History of the Attorney General and the Department of Justice
• 3. The Political Role of the Attorney General
• 4. The Attorney General and the Separation of Powers
• 5. The New American Political System and the Judicialization of Politics
• 6. The Department of Justice and Administrative Law
• 7. Conclusion: The Politics of Justice
• 8. Epilogue: Reflections on Justice during the Bush Administration
• Appendix: Published Speeches and Articles by Attorneys General, 1925-1988
• Selected Bibliography
• Index