Vol. 3 No. 6 (June, 1993) pp. 63-66

THE POLITICS OF JUSTICE: THE ATTORNEY GENERAL AND THE MAKING OF LEGAL POLICY by Cornell W. Clayton. Amonk, New York: M.E. Sharpe, Inc., 1992. 274 pp. Cloth $45.00. Paper $18.00.

Reviewed by H. W. Perry, Jr., Department of Government, Harvard University

Cornell Clayton does what many scholars fail to do. He places and examines his subject, the attorney general, squarely are sumptom-within the context of broader concerns of American politics. He does this systematically, not simply with nods here and there. His focus is on the attorney general, but his contex- tual approach leads him to deal with the judiciary, the Congress, the president, and the bureaucracy. The contextual approach is the book's great strength. Students of various aspects of American politics, including the attorney general, will not learn a lot new about their area of expertise, but they will be chal- lenged to think about their respective specialties in an intelli- gent and more integrated way. That is especially true for those of us whose focus is the law and legal institutions. How often do we think about the effects of divided government or the congressional reforms of the seventies as important for under- standing law and legal policy making? Clayton forces us to do that. Those unfamiliar with the attorney general will learn much from reading this book.

Clayton argues that the attorney general has become a very important political figure and that the process of making legal policy has become highly politicized in the United States. He suggests that, "The controversies that have surrounded recent Attorneys General present a marked contrast to the relative ob- scurity in which the office operated throughout most of its existence" (p. 3). He claims that "prior to the 1930s, govern- ment legal policy making was generally viewed as a `legal' rather than `political' enterprise" (p. 3). Though I am always skepti- cal of claims about how "apolitical" legal institutions were in the past, his claims are ones that most readers will find persua- sive.

Clayton's explanation for why the attorney general has become so important includes several factors. First, he suggests that the attorney general has evolved "from an elite barrister, perceived as a judicial institution, into an administrator of a massive executive branch bureaucracy"(p. 6). Secondly, he argues that "the acceptance of more integrative modes of political jurisprudence and the growth of interest group litigation have led to the judicialization of larger and larger areas of public policy." He believes that "this in turn has created a more politically autonomous judiciary and increased the importance of litigation and judicial selection as instruments of presidential policy making" (pp. 6-7). Such arguments are not uncommon. It is his third reason that is most intriguing and important for his larger argument.

. . . because Democrats have tended to control Congress and the Republicans the White House, since 1968 there has been a tendency for policy disputes to be transformed into institu- tional conflicts over constitutional powers. . . . Polar- ization of ideology, both within and between the two elected branches, has had dire consequences for democratic control of public policy. Presidents have increasingly relied on administrative strategies of policy making, while Congress has increasingly sought to "micro-manage" administration. The result is a new style of administrative law: one in which the judiciary is more intricately involved in the administrative process, and where control over agency liti- gation becomes an important lever for bureaucratic manage- ment. (p. 7)

It is his arguments in support of this premise that constitute the most interesting and debatable part of his book. He extends his systemic perspective as follows:

The transformation in the conventions and perceptions that define the Attorney General's role as the government's chief legal policymaker, however, are symptom-

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atic of more fundamental changes in the American political system. The twentieth-century metamorphosis of the federal government from a limited to a positive state greatly magni- fied the tensions inherent in our system of separated pow- ers. This development, coupled with the erosion of American political parties and the regularization of split-ticket voting in the post-1968 period, has altered fundamentally the style of American politics. While the operations of nearly all major political institutions changed, the central role that "the law" plays in the constitutional system put particular stress on the legal policy establishment. (p. 4)

While the contextual approach is the great strength of Clayton's work, it also provides fodder for those who would disagree with him. After all, there is much disagreement among political scientists about American politics, so their is no clearly agreed upon context in which to place the attorney general. For example, Clayton argues that the effects of divided government matter for legal policy making, but of course, there is debate among political scientists about the effects of divided government. Clayton varies in his acknowledgment of, and his coming to terms with, differing interpretations about the attor- ney general and other institutions or legal doctrine. At times he gives a detailed argument for his understanding; other times, he tends to take a point of view with less justification. Nevertheless, Clayton usually gives a defensible, if not univer- sally accepted, view of those things that he examines. He cannot be expected to solve all the debates of American politics, nor can he be expected to give every rival hypothesis or interpreta- tion to explain the behavior of the attorney general. Disagree- ments with him should be of the best sort; they will generally be with his interpretations. And, I should add, I found many of them persuasive.

After the introductory chapter, Chapter 2 outlines the history of the attorney general and gives a brief description of the modern Department of Justice. Chapter 3 traces the evolution of the political role of the attorney general. In these chap- ters, and others for that matter, Clayton provides us with a nice summary of a great deal of history -- both in terms of events and doctrine. Most details come from secondary sources, but he puts them together in highly readable ways, and he also adds informa- tion from some personal interviews. A quibble, Clayton is often not clear about time frames. Modern sometimes seems to refer to post-Hoover, other times, the Warren Court forward, and still other times post-Carter. One issue that Clayton makes much of is interesting, though, in my opinion, overstated. Clayton claims that the attorney general was initially considered to be a judicial officer and only evolved into becoming an executive one. Though he offers additional evidence, his main proof is that the position was created in a bill that created courts, and that an earlier version of the bill had the attorney general appointed by the Supreme Court. However, the fact that the original bill was amended is quite significant, and the fact that the subsequent legislation was vague is unimportant because it clearly left appointment to the President. Much early legislation did not fall along lines that separate the branches neatly. I make an issue of this because I think it confuses the issues of "politic- ization" that Clayton is at such pains to put in systemic per- spective. Arguments such as Clayton's can be problematic if used to solve modern day Constitutional questions about separation of powers. Also the argument does not fit very well with Clayton's exposition about the British attorney general being the forerun- ner of the office. Clayton's main point is certainly correct in saying that the office has evolved dramatically from its original function, and the office has shed much of its "above politics" character, but even when attorneys general of the past performed "the most law-related functions" they were nonetheless executive in nature even if not very "political."

Clayton wrestles intelligently with the dilemma of politici- zation. He understands the word at various levels of meaning. As he puts it, "It is one thing to say the President should not be allowed to obstruct criminal investigations of his own admin- istration; it is quite another to deny

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him any influence over government legal policy. . . .The problem is that it is next to impossible to erect legal obstacles that prevent partisan corruption and cronyism that do not also effect political influence of a proper kind." (p. 102) He may give a bit too much attention to scandals, but this may be due to his concern with documenting change, and scandals have been important historically. Of greater concern, is that he too often accepts the journalistic account, or the "common wisdom" account of what was going on at the Justice Department. In his defense, given the lack of research on the Justice Department, there are few places to turn for more sophisticated understandings, but it does make his analysis more suspect.

Chapter 4 begins a discussion of separation of powers. Issues surrounding separation of powers play a prominent role throughout the remainder of the book. He walks through the doctrinal evolution as it relates to the President versus Con- gress and he introduces the complicating factor of a "fourth branch," the bureaucracy.

Chapter 5 is entitled "The New American Political System and the Judicialization of Politics." Clayton argues that beginning with Roosevelt -- after he ultimately won the war subsequent to losing the battle in the court-packing scheme -- that a new alli- ance was forged between the executive and judicial branches. Not only did attorneys general become more partisan advocates, but the courts worked in tandem with the President. For the Roose- velt era, it meant the courts stayed out of the way. For Truman, Johnson and Kennedy, it meant that Courts helped Presidents achieve their policy goals despite a recalcitrant Congress. The example used is civil rights. Other examples might suggest a different story. One does not usually think of an alliance between Truman and the judiciary. Nevertheless, Clayton's basic argument as used is sound. He goes on to tell the story of the Warren Court revolution that made the judiciary more political and independently powerful. The collapse of the judicial-execut- ive alliance occurs with the Nixon administration, brought about by Nixon's antagonism to liberal judges and ultimately by Water- gate. Watergate displayed the worst aspects of an overly politi- cized office and so following the Nixon era, Ford and Carter attempted to depoliticize Justice. Clayton then tells the story of the politicization of Justice by Reagan. He argues that more and more people flooded Washington, D.C. who were "true believ- ers" rather than "plain old politicians." He suggests that "When deeply held personal beliefs are perceived to be at stake, flexibility is lost and policy give-and-take becomes impossible" (p. 122).

Again, to his credit, Clayton draws upon the work of politi- cal scientists in other areas to help explain the new American politics and its effect on behavior at Justice. Drawing from scholars like Benjamin Ginsberg, Martin Shefter, and others, he argues:

National politics used to be fought out in the voting booth every four years, with clearly identified partisan camps competing for control of policymaking institutions. The electoral arena produced clear winners and losers. The winners gained a chance to implement their policy agenda centered around a set of materialistic claims; the losers, playing the role of the loyal opposition, waited for the next election. (p. 123).

Really? That is not my understanding, though I know it is for some political scientists. Whatever one's understanding of the past, Clayton's understanding of the present is important. The following excerpt encapsulates what may be his most important point, which is that partisan policy disputes now have a greater chance of escalating into constitutional conflicts over the powers of the Congress and the president, and this inevitably politicizes Justice.

The implications of postelectoral politics for the Justice Department are profound. The regularization of institutional conflict, especially over the control of the administrative bureaucracy, and the legalization of policy disputes thoroughly

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politicizes the day-to-day environment of the Justice De- partment. The separation of powers and the unique character of the Supreme Court power of judicial review have always left America's legal establishment susceptible to politiciz- ation during periods of constitutional conflict or crisis. The difference is that constitutional conflicts used to be limited to periods of extraordinary political development and transformation, periods of critical realignments. In the new American political system, they have become regular- ized and routine, merely the pursuit of politics by any other means. (p. 123).

Clayton sees the separation of powers battleground played out most dramatically and importantly in administrative law. That is the subject of Chapter 6. This is a very interesting chapter. He outlines some doctrinal developments in administra- tive law and highlights court battles between the legislature and the executive over control of the bureaucracy. He disagrees strongly with the interpretations of scholars like Martin Shapiro and Jeremy Rabkin, and in my opinion he does not always win the debate, especially with Shapiro. But his own argument as it relates to the role of the Justice Department in the conflict is important. He concludes that, "because of its strategic position between courts, the Congress, and other administrative agencies, the Justice Department is at the center of these new administra- tive law conflicts." Clayton's arguments tend to assume, though they are not necessarily dependent upon, divided government, so the Clinton Administration should be an interesting test for the systemic nature of his argument.

The book concludes with an epilogue about the Bush adminis- tration. He lets us see his own normative position, which is fine, but his arguments are not systematically developed as they are in the rest of his book. For example, he even suggests that we might need a new constitution, which comes almost out of left field. Readers sometimes read a concluding chapter of a book to gauge its value. That would be unfortunate here because it is not at all indicative of his careful arguments elsewhere.

THE POLITICS OF JUSTICE is a very fine book. It should be of interest to many different publics. Students of legal policy making will benefit from reading it. Students of Congress, the bureaucracy, or other aspects of American politics should pay greater attention to public law scholarship generally, and Clayton's book invites and deserves such attention.

Copyright 1993