Vol. 5 No. 11 (November, 1995) pp. 263-266

GOVERNMENT LAWYERS: THE FEDERAL LEGAL BUREAUCRACY AND PRESIDENTIAL POLITICS edited by Cornell W. Clayton. Lawrence, Kansas: University Press of Kansas, 1995). Pp. 292

Reviewed by James Eisenstein, Professor of Political Science, Penn State University. .

I find myself in the interesting position of reviewing a volume whose publisher had asked me for an evaluation of the initial book proposal. My response noted that the proposed chapters would not cohere because there was no common framework to a common set of questions. Rather, the book would be a compilation of largely independently conceived essays. The published work pretty much turned out as I anticipated. Although some problems I noted with respect to the volume's conceptualization and coverage were addressed, many remain. The uneven quality of the individual chapters results in a book that does not realize its potential. On balance, it meets the modest but useful goal its editor set for it, to be "a valuable introduction to this increasingly important area of public-policy [i.e. the role of Federal government lawyers in shaping policy] and as a catalyst for future research." (p. 24)

The basic premise upon which the general research question addressed is sound. In his introductory chapter, editor Cornell W. Clayton points out that the legal arena exerts growing influence over federal policy in a number of areas, but that our knowledge of the role government attorneys play in shaping these outcomes remains largely unknown. Clayton terms the government lawyers the "legal bureaucracy." However, neither the introduction nor substantive chapters do much with the notion of bureaucracy. In a curious emulation of the "upper court myth" all of the chapters focus almost exclusively on appointed federal government attorneys who hold leadership positions to the exclusion of attorneys holding lesser positions. Readers looking for information on how rank-and-file attorneys in the Department of Justice, the United States attorney's offices, or other federal legal offices shape policy will have to look elsewhere.

Though no unifying set of questions or analytical framework structures the book, Clayton's introduction does extract several useful recurring themes or questions in the substantive chapters. One is the familiar position that in studying law in action, those who apply it (including government attorneys) exercise considerably more discretion than traditional conceptions of law admit. A second theme is the distinction between two types of political influence over government attorneys' decisions: the legitimate consideration of ideology and philosophy in making legal judgments; and an improper partisan use of law to corrupt and abuse power. Finally, Clayton identifies several differences in how his authors approach the study of federal legal policy: (1) the traditional legal doctrinal analysis performed by law school professors versus the empirical approach of political scientists; (2) a conflict between rival social science approaches, one attributing considerable autonomy to individual decision-makers, the other viewing behavior as the product of the political environment; (3) the use of a rational decision-making approach; and (4) an approach that links broad structural changes in the political system to individual behavior (which Clayton terms the "contextual-institutional" model). Unfortunately, there is no concluding chapter that examines the utility of these different approaches as revealed by the substantive chapters. Nor is any attempt made to summarize what the preceding chapters taken together reveal about the role of federal legal executives in the political process or to identify the most promising areas of research. It is up to readers to extract any such general conclusions for themselves. Thus the principal value of the book rests in the contributions of the individual chapters standing alone rather than in any cumulative understanding derived from the book as a whole. No doubt readers of this review will differ in the chapters they find most useful.

Four of the eight substantive chapters do not deal with federal legal bureaucracies in line agencies. Katy J. Harriger looks at "Independent Counsel" appointed to investigate specific instances of alleged executive branch wrong-doing under the 1978 Ethics in Government Act. Three chapters examine the role of top legal advisors in the White House and Department of Justice's Office of Legal Counsel. Jeremy Rabkin examines the history and duties of lawyers serving in the White House. Readers already familiar with the role of such White House lawyers as FDR's Samuel Rosenman, Truman's Clark Clifford, Nixon's John Dean on through Clinton's Bernard Nussbaum will find this treatment familiar territory. Nelson Lund and Michael Strine take somewhat different approaches to examining the relationship between the Office of Counsel to the President and the Department of Justice's Office of Legal Counsel, and to the assessment of their institutional interests and policy roles. Both tell us more about the play of power at the highest levels of government than about the work of less visible attorneys in bureaucratic agencies administering policy.

The remaining four chapters deal with main line agencies. Nancy Baker focuses on the Attorney General as policy-maker, Rebecca Mae Salokar examines the Solicitor General, Neal Devins looks at administrative agencies' general counsels, and Michael Herz investigates attorneys serving Independent Agencies.

Nancy Baker's chapter on the Attorney General restates the principal theme of her book CONFLICTING LOYALTIES: LAW AND POLITICS IN THE ATTORNEY GENERAL'S OFFICE, 1789-1990 (Kansas University Press, 1993). It focuses primarily on the interactions of Attorneys General with presidents on high policy in what Baker calls "the nexus of law and politics -- as the nation's chief law office on one hand, and as presidential appointee on the other." (p.49). The chapter leaves largely unexamined the role of the Attorney General as overseer of the Department of Justice's headquarters-based and field-based attorneys, and says nothing about the policy role played by United States attorneys or career attorneys in the Department's various divisions.

Rebecca Mae Salokar also draws on a previous book-length treatment (THE SOLICITOR GENERAL: THE POLITICS OF LAW, Temple University Press, 1992) in providing a useful overview of the history, organization, duties, strategic environment, and policy role of the Office of Solicitor General. Salokar's principal points are sound but unlikely to surprise. She sees the position of Solicitor General as a political one whose occupants operate in a complex environment. They must combine the functions of helping the Supreme Court choose cases (gatekeeping) and reach decisions, protecting the institutional interests of the executive branch, and helping to promote the administration's policy goals. When the performance of these functions conflicts (a rare event, says Salokar), the administration's political interests usually prevail.

Neal Devins' chapter on legal policy-making by the general counsels at independent agencies efficiently conveys the wide and unpatterned variation in their roles and functions. He briefly mentions three factors shaping these differences: the importance of litigation to the agency's mission (e.g., high in the EEOC, low in the Postal Service); the general counsel's relationship with the agency's leadership; and the degree of agency autonomy from the Department of Justice in conducting litigation. Most of the chapter explores the last topic through an insightful description of the politics of bureaucratic turf battles between the Department of Justice and the EEOC and FCC over who would control litigation. Students of bureaucratic policy will find these interesting stories. However, the analysis reveals more about which federal attorneys will make legal policy decisions than how they make them or what their overall impact on policy is.

We know bureaucratic discretion plays a crucial part in determining what policy is, but knowledge of the internal dynamics of bureaucratic policy implementation is sparse. Michael Herz's sophisticated and analytical examination of the role of federal bureaucratic agencies' offices of general counsel offers some refreshing and important insights into the topic. Herz's description of the history, duties, and strategic environment of agency counsels is especially useful given the paucity of research and writing devoted to them. He notes they and their staff serve primarily as counselors or givers of legal advice, rather than as litigators (a function reserved for the Department of Justice). Unlike generalists in the Department of Justice, agency general counsels, and especially career attorneys in their offices, possess substantial expertise in their agencies' subject areas and commitment to their goals. Finally, they face a complex and "unique set of conflicting pressures and obligations" (p. 170) emerging from conflict between their agency heads, the Department of Justice, the OMB, the White House, the agencies' clients, the courts, and Congress (especially the subcommittees that oversee the agencies).

Relying on such resources as legal and policy expertise, good information, and the access to top decision-makers that the need to get legal advice provides, Herz argues that general counsel in mainstream federal bureacracies are involved in virtually every stage of the policy process -- developing proposals, reviewing initiatives and rules, providing legal advice and opinions about what can and cannot be done, and assisting Justice Department lawyers who litigate on behalf of agencies. Furthermore, Herz concludes that an agency general counsel is "More often than not...a confidant in the inner circle of the agency's top officials" and, as a result, "plays a central role in administrative agency policy- making." (pp. 148-49)

Herz's chapter also contains a brief but insightful case study of the role that EPA's general counsel played in a controversy over whether state administrators had to allow public notice and a hearing when they made minor changes in existing permits under the Clean Air Act. The case nicely illustrates many of the general points Herz makes about the duties, strategic situation, and policy roles of general counsel in the play of power. To his credit, he also discusses the limits on their ability to shape policy outcomes. His description of the dynamics of interactions of agency general counsel with other actors within the agency itself, with the rest of the executive branch (especially the Department of Justice), and Congress also provide solid and useful insights. For me, this was the most interesting and useful chapter in the book.

The book (and especially Herz's chapter) demonstrates the contributions further research into the workings of the federal legal bureaucracy can make to understanding the policy process. In my view, the greatest payoff lies in looking more deeply into the policy role played by leaders and rank and file attorneys working in the Department of Justice's divisions and its field offices and in other federal administrative agencies rather than focusing at the highest levels of presidential politics and policy. Several of the chapters in this book (especially Herz's) provide a useful starting point for anyone embarking on such work, both for the initial background they provide, and for the gaps in our understanding that their coverage reveals.