Law in Contemporary Society

The Liberalization of Law Schools and the Decline of the Lawyer-Politician

-- By PatrickWaldrop - 11 Mar 2017, Revised 1 June 2017

The Decline of the Lawyer-Politician

A legal background has practically been a prerequisite for success in politics for many years, but the number of lawyers holding elected office in the United States has been steadily declining for decades according to research done by Nick Robinson in his paper, “The Declining Dominance of Lawyers in U.S. Federal Politics.” The percentage of Congressmen who are or were lawyers peaked at around 80% in the mid-nineteenth century, but today that number sits at less than 37% – the lowest it has ever been. 59% of all United States presidents have been lawyers, but only 4 of the last 10 were.

This phenomenon is not limited to the federal government either. In 1976, lawyers made up 22.3% of state legislators, but in 2016 that number had
declined by more than a third to 14.4%. Kansas briefly made headlines after the 2016 election after it was discovered that no senator in the Kansas Senate was a licensed attorney despite a statutory requirement that a licensed attorney from the Senate serve on the Joint Committee for Special Claim Against the State.

It is unclear of course whether this is actually a problem. On the one hand, it seems obviously desirable that people who make and enforce our laws have a deep understanding of how the Law works, but on the other hand, how can we have a government of the people and by the people when the members of that government are predominantly pulled from a pool of less than half a percent of the population?

That question is not what I seek to answer here though. Regardless of whether the decline of lawyers holding elected office is actually a bad thing, I am curious what factors led to the decline. In this essay, I propose that one of these factors may be the liberalization of law schools and thusly of lawyers. It is a bit of a novel idea, but I have found it surprisingly compelling.

The Drying Well of Conservative Clerks

I first began exploring this idea after some remarks by Laurence Silberman, a Senior Judge on the DC Circuit, at a small lunch event in February 2017. Judge Silberman was discussing clerkships and the importance of having a relatively close ideological alignment between a clerk and a judge, when he commented that the Harvard Law faculty had been evenly split between Nixon and Kennedy in the 1960 presidential election. He further stated, however, that in the most recent presidential elections, the Harvard Law faculty had overwhelming supported Obama and then Clinton. He then described a present difficulty in finding well-trained, conservative clerks, which he partially attributed to this ideological shift among law school faculties.

While some of Judge Silberman’s claims might be biased or exaggerated, the basic premise can be substantiated. It’s no secret that conservative voices are disappearing on university campuses, and law schools have not been immune. James Lindgren, a professor at Northwestern’s Pritzker School of Law, recently found that 82% of law professors are Democrats.

The theory goes, then, that left-leaning law professors tend to teach the law with a liberal slant, creating lawyers that understand the Law through a left-leaning lens. As this effect is compounded over successive generations of law professors, you end up with fewer and fewer lawyers with a conservative understanding of the law. Conservative judges, like Judge Silberman, lament this perceived trend because they wish to hire conservative clerks. As the sources of conservative legal education dry up, the pool of lawyers for these judges to hire clerks from also dissipates, forcing some of these judges to hire students from less prestigious institutions or with worse grades than in the past.

Applying the Conservative Clerk Draught to the Decline of Lawyer-Politicians

Following my discussion with Judge Silberman, I began to wonder how else the leftward shift in legal education might affect us, and I realized that the same principles behind Judge Silberman’s analysis could be used to partially explain the decrease of lawyers holding elected office. Lawyers are in fact more liberal than the overall population, and this must be due at least in some small part to the liberal slant present in legal education.

As the number of conservative lawyers decreases, demand for conservative representation in government does not – just like the demand for conservative clerks does not. This means conservative voters – just like conservative judges – must settle for a smaller pool to pull candidates from or expand the pool. Accordingly, the decline of lawyers holding elected office might be nothing more than the result of conservatives choosing to expand the pool of who they consider qualified for office rather than settling for the limited pool of conservative lawyers.

Explaining the Decline of Lawyer-Politicians on the Left

The decline of lawyers holding elected office isn’t just on the conservative side of the aisle though, so for this theory to hold any weight, it may have to account for a decrease in lawyer-politicians on the left as well. Before Trump and Reagan, there was JFK after all.

One possible explanation is simply that as conservatives have been forced to look outside the legal profession, they have had immense success, so liberals have sought to adopt the same strategy. Recently, Oprah Winfrey, emboldened by a President Trump, hinted at exploring a run in 2020. If it works for Republicans, why not for Democrats? Alternatively, perhaps liberals have found that lawyers, who might largely be might be better at arguing than inspiring, simply don’t do well in elections against conservative, charismatic businessmen so they’ve been grudgingly forced to run candidates without a legal background. Finally, it is at least possible that a decline in liberal lawyer-politicians is completely unrelated to a coinciding decline in conservatives.

An Argument for Ideological Diversity at Law Schools

If this theory ultimately has merit, it would present the legal profession with a surprisingly simple path to returning to electoral dominance: find more conservative law professors. It is certainly a long-term solution, but we all benefit from ideological diversity and well-educated leaders on either end of the political spectrum.


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r4 - 02 Jun 2017 - 04:05:44 - PatrickWaldrop
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