Vol. 2 No. 8 (August, 1992) pp. 107-108
CONFLICTING LOYALTIES: LAW & POLITICS IN THE ATTORNEY GENERAL'S OFFICE, 1789-1990 by Nancy V. Baker. University Press of Kansas, 1992. 148 pp.
Reviewed by James Eisenstein, Department of Political Science, Pennsylvania State University.
As its subtitle suggests, CONFLICTING LOYALTIES examines how U.S. attorneys general respond to the inherent conflict that arises from competing pressures from the spheres of law and politics.
The author has two purposes. The first, stated on page 1, argues that examining the tensions these pressures produce "may enable us to clarify our expectations of the office and reject those that are unrealistic or problematic." The second, largely implicit, seeks to go beyond clarification of expectations to increase our understanding of the factors that shape how attorneys general behave. The most explicit statement of this second purpose follows the introduction to the book's principal conceptual distinction: the "Advocate" and the "Neutral" styles of behavior in office. It reads (35), "Most of this book will test the validity of these two ideal types against the actual experiences of several attorneys general."
The book "draws on an empirical examination of almost forty attorneys general [among the seventy-five who have served]." (36) It relies primarily on published sources, though Professor Baker also examined archival material in four presidential libraries and conducted a handful of interviews with several former attorneys general and other Department of Justice officials.
The book succeeds in achieving the first purpose. Throughout, Professor Baker recounts a number of fascinating stories of the important roles a number of attorneys general have played as legal and political decision-makers and occasionally as the architects of scandal. Most students of the federal legal process will be familiar with descriptions of the troubled tenure of A. Mitchell Palmer, Harry Daugherty, and John Mitchell, and the more uplifting tenure of Harlen Fiske Stone and Edward Levi. Fewer will know much about Caleb Cushing, who played a central role both in securing Franklin Pierce's nomination and in shaping his administration's policies. The discussion of the relationship between Griffin Bell and President Carter and his other advisors provides an especially rich and interesting glimpse into the dynamics of attorney general's behavior.
There are no surprises in the final chapter's discussion of the complex mix of advantages and disadvantages flowing from both the "Advocate" and "Neutral" styles. Professor Baker argues that even a Neutral who avoids overtly political decisions nonetheless makes political choices in fulfilling the office's responsibilities. She concludes that "under ordinary circumstances" the Advocate style better meets the conflicting demands of the office. The discussion provides a useful and sound overview of the office's place in the American political system. The synopsis of competing views of the appropriate relationship between the president and the attorney general in chapter one and the summary of the development of the office in chapter two are also worthwhile.
There are some surprising omissions in Professor Baker's coverage that limit the book's success in clarifying our expectations of the office. It largely ignores existing literature on federal judicial administration, United States attorneys, the solicitor general, and the anti-trust division, among others. Its treatment of special prosecutors and the problems posed when the decisions of an attorney general affect the partisan fortunes of his president, his party, or the opposing party is far less extensive than it should be. Ramsey Clark's tenure receives little attention. Most serious is the failure to explore fully Elliot Richardson's decision to resign rather than accede to President Nixon's order that special prosecutor Archibald Cox be fired. This act, and the sequence of events triggered by the "Saturday Night Massacre," played a pivotal role in recent American political history. It offers an unsurpassed opportunity to explore
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how an attorney general's loyalties can be in conflict, and how the resolution of the conflict matters.
The book largely fails to achieve the second purpose. Readers seeking a well-grounded, conceptually sound approach to enhance their understanding of how the office of attorney general fits into the political and legal systems will find this book disappointing. Professor Baker possesses a good instinctive understanding of a variety of factors that shape how attorneys general behave. But nowhere does she present in a systematic way the variables that shape the office and its occupants; nor does she discuss how these variables interact. A partial list of the factors mentioned at various times suggests the value of such systematic inquiry. They include: the nature of the president's personality and management style, the politics surrounding the appointment of the attorney general, the general political environment (for example, whether scandal recently touched the Department of Justice or attorney general; whether the president's party controls congress); the attorney general's concept of the law and his role; the strength of competing sources of both legal and political advice in a president's administration.
Problems also arise in the use of the "Advocate -- Neutral" typology. Professor Baker acknowledges that it is "rudimentary," but it is more rudimentary than it needs to be. The most detailed presentation of the typology appears in two brief paragraphs in Chapter One. The book contains the raw material necessary to construct a well grounded portrait of the strategic environment of the attorney general. It could then examine how the personal characteristics of individual attorneys general interact with the strategic environment to produce different styles. Some version of the "Advocate -- Neutral" distinction would probably result. But it would be more powerful and useful if it were constructed from a richer set of variables. For example, one could distinguish between an active and neutral style in two spheres of activity -- as head of the Department of Justice and chief legal officer, and as a policy advisor and participant in forming broad domestic and foreign policy. The resulting four-fold classification would provide a start in providing a more sophisticated and useful scheme.
As the distinction is used, it is not clear whether Professor Baker systematically applied a set of established defining criteria to categorize the attorneys general she studied as "Advocates" or "Neutrals." A summary table listing these criteria and how they are operationalized, and another placing the forty individuals studied along the "Advocate -- Neutral" continuum would have clarified the conceptual scheme and eliminated some of the confusion I repeated encountered. One example conveys the nature of this pervasive confusion. Benjamin Brewster, discussed at length in the chapter on the Neutral attorney general, "became one of Arthur's trusted advisors in political as well as legal affairs." (135) The text continues, "This broad advisory role seems to conflict with the Neutral type, except that Arthur himself acted in such a surprisingly nonpartisan way while in office." Here, the degree of a president's partisanship apparently controls the decision to classify an individual along the book's central conceptual dimension, forcing someone whose behavior would qualify him as an "advocate" in a different president's administration into the "neutral" camp.
If CONFLICTING LOYALTIES fails to advance our understanding of the role attorneys general play in American law and politics as much as it might have, it does take a step forward in doing so. It demonstrates well that much interesting and important work remains to be done. The book provides a useful starting place for Professor Baker and others interested in the federal legal process to advance our systematic knowledge of the role the office plays.