Wednesday, January 17, 2018

Ernst on the Campaign for a Federal Legal Service

With so many of the preconditions of liberal democracy in the United States under attack from the Trump Administration and its enablers, I was moved to consider what my ongoing research into New Deal lawyers might say about one institutional defender of the rule of law, the American legal profession.  The light I can shed falls mainly on lawyers in the federal government.  Like all professionals, they risk having their assertions of authority dismissed as the self-serving claims of a narrow elite.  Because they work within the state, they are also likely to be accused of harboring partisan motives or advancing a political ideology at odds with the will of the people. 

In an article published on-line today in the American Journal of Legal History, I tell what happened when New Dealers attempted to make their own notion of professional merit the principle for hiring and promotion in a “federal legal service.”  Spoiler alert: They failed, which is why you probably never heard of the episode (unless you encountered it on two pages of Jerold Auerbach’s Unequal Justice).  Because the politics of the late New Deal and World War II are not the politics of today, analogizing from the New Dealers’ campaign to our present predicament is not straightforward.  That said, I has a few implications for today’s defenders of the professional authority of government lawyers.  First, they ought to mobilize the legal profession as a whole by giving its members a stake in the process.  Second, their notion of professional merit should be flexible enough to accommodate the variety of tasks government lawyers perform.  Third, a strategy that requires the affirmative support of Congress presents obstacles more easily circumvented by proceeding agency by agency, within what Willard Hurst once called the executive “prerogative.”

The article is “In a Democracy We Should Distribute the Lawyers”: The Campaign for a Federal Legal Service, 1933-1945.  Here is the abstract:
Felix Frankfurter (LC)
To build its many unprecedented bureaucracies, the American New Deal heavily relied upon recent graduates of elite law schools, in a break with prior practice and to the increasing annoyance of congressmen and senators. To head off an attempt to entrust the selection of government lawyers to the Civil Service Commission, in January 1939, President Franklin D. Roosevelt appointed a committee, chaired by Stanley Reed and including two other Supreme Court Justices, Felix Frankfurter and Frank Murphy, to study the question. In April 1941, he accepted the recommendation of the lawyers on the “Reed Committee” and created the Board of Legal Examiners, headed by Solicitor General Francis Biddle (soon replaced by Charles Fahy) and managed during its first, crucial year by Herbert Wechsler, who was on leave from the Columbia Law School. As conceived especially by Frankfurter, the Board’s mission was to create an American counterpart to the British Civil Service, in which lawyers advanced to increasingly important posts throughout the executive branch. Although wartime conditions hampered the Board, it administered a national exam that provided greater access to government jobs than had the New Deal’s version of an “old boys network,” which drew heavily upon the law faculties of Harvard, Columbia, and Yale. Congressional hostility persisted, however, and was joined by the opposition of a powerful veterans’ lobby. The Board’s response to this pressure is instructive for a time when government lawyers and other professionals are being denounced as members of an anti-democratic Deep State.