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
Page 108 follows:
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.