Shugerman on the Creation of the Department of Justice

Jed Handelsman Shugerman, Harvard Law School, has posted The Creation of the Department of Justice: Professionalization Without Civil Rights or Civil Service, which is forthcoming in the fall in volume 66 of the Stanford Law Review.  Here is the abstract:

Thomas A. Jenckes (Credit: NYPL)

This Article offers a new interpretation of the founding of the Department of Justice in 1870 as an effort to shrink and professionalize the federal government. The traditional view is that Congress created the DOJ to increase the federal government's capacity to litigate a growing docket as a result of the Civil War, and more recent scholarship contends that Congress created the DOJ to enforce Reconstruction and ex- slaves' civil rights. However, it has been overlooked that the DOJ bill eliminated about one third of federal legal staff. The founding of the DOJ had less to do with Reconstruction, and more to do with "retrenchment" (budget-cutting and fiscal conservatism) and anti-patronage reform. The DOJ's creation was contemporaneous with major professionalization efforts (especially the founding of modern bar associations) to make the practice of law more exclusive and more independent from partisan politics. A small group of reformers worked on a combination of the DOJ bill, civil service reform, bureaucratic independence, and founding modern bar associations in the late 1860s through 1870.

This Article also explains why the Department of Justice did not include civil service reforms as part of this professionalization project, even though the same reformers were fighting for broad civil service legislation at exactly the same time. The same Congressman who led the DOJ effort in 1870, Thomas Jenckes, was also known as "the father of the Civil Service" and simultaneously fought for civil service reform. Jenckes succeeded in passing a DOJ bill to professionalize government lawyers by reorganizing them under a more professional and independent Office of the Attorney General, rather than through civil service reform. Meanwhile, reformers fell short in their civil service campaign for other kinds of federal employees, reflecting a view that government lawyers were different from other government officials in the post-Civil War era.

In this new light, the DOJ's creation conflicts with one historical trend, the growth of federal government's size. Instead, it was at the very leading edge of two other major trends: the professionalization of American lawyers and the rise of bureaucratic autonomy and expertise. This story helps explain a historical paradox: how the uniquely American system of formal presidential control over prosecution evolved alongside the norms and structures of professional independence.