Maybe Washington Does Need More Lawyers

(Bloomberg Opinion) -- There’s something different about the new U.S. Senate. For what appears to be the first time ever, lawyers are in the minority in the “world’s greatest deliberative body.” In the House of Representatives, where they fell into the minority in the late 1970s, lawyers are now down to just a third of the total.

Maybe Washington Does Need More Lawyers

These numbers, part of the Vital Statistics on Congress database updated this week by the Brookings Institution, only go back to 1953. But Stanford University political scientist Adam Bonica has assembled data back to 1789 indicating that the Senate has until now always had lawyer majorities. In the 1800s, both the House and Senate were often more than 75 percent lawyers. The decline in lawyer-legislators, which has also been occurring in state capitals, thus marks a big change in how politics is done in this country.

Lawyers are of course still wildly overrepresented in politics relative to their overall numbers, with lawyers, judges and law clerks making up less than one-half of a percent of the U.S. workforce in 2017, according to the Bureau of Labor Statistics. They’re also still wildly overrepresented in the U.S. relative to other countries. “Even in other common law nations such as the United Kingdom, Canada, and Australia,” Bonica wrote, “the percentage of lawyers in national legislatures is no more than a third of what it is in the U.S.”

In that context, the ongoing decline in lawyers’ representation in Congress seems like a turn toward more representative government. Also, in a country with a long history of complaining about lawyers, it seems like having fewer of them on Capitol Hill ought to lead toward better government. But things may be more complicated than they seem.

In 1831, Alexis de Tocqueville famously depicted American lawyers as an “aristocracy” with “eminently conservative and anti-democratic” tendencies. As a French aristocrat, he saw this as a good thing:

The profession of the law is the only aristocratic element that can be amalgamated without violence with the natural elements of democracy and be advantageously and permanently combined with them. I am not ignorant of the defects inherent in the character of this body of men; but without this admixture of lawyer-like sobriety with the democratic principle, I question whether democratic institutions could long be maintained; and I cannot believe that a republic could hope to exist at the present time if the influence of lawyers in public business did not increase in proportion to the power of the people.

In 1964, the great Queens College political scientist Andrew Hacker depicted this conservatism in a less positive light. “Conserva­tive Congressmen, intent on resisting innovation, are the ones who most frequently use their training in the law to political advantage,” he wrote in the New York Times, also arguing that Tocqueville’s hope that lawyers would “serve as a barrier against ma­jority tyranny” had proved misplaced: “The lawyers in Congress, no less than their lay colleagues — and often more so — have been quick to respond to the pressure of majority sentiment, even when popular opinion has come down on the side of legislation with harm­ful long‐term consequences.”

Those sound like valid criticisms, but today’s less lawyerly Congress isn’t obviously better at its job than the Congress Hacker described. In fact, the decline in lawyers’ share of House and Senate seats has coincided with a big decline in public trust in government, as well as a rise in political polarization. And while there’s a fair chance that this is pure coincidence, there are at least a few reasons to believe that these trends might be related.

In a fascinating 2016 Atlantic cover story, Jonathan Rauch argued that what had gone wrong with U.S. politics in recent decades was the decline of a political class of “careerists and hacks” who “have a stake in assembling durable coalitions, in retaining power over time, and in keeping the government in functioning order.” He never mentioned lawyers in the piece, but considering that they dominated the political class for most of U.S. history, it does seem like he was at least in part talking about them.

Lawyers also happen to be in the business of dispute resolution, or at least they should be. In a 2004 law review article, University of Nevada at Las Vegas law professor Jeffrey W. Stempel proposed that the declining number of lawyers in politics, combined with the declining professionalism of lawyers in the face of economic pressures, had resulted in “poorer dispute resolution in the public arena and poorer public policy outcomes.” They also, you know, care about the law. In a 2017 law review article, Nick Robinson of the International Center for Not-for-Profit Law pointed to research indicating that lawyer-legislators disproportionately support “rule of law values such as judicial independence,” and fretted that: 

In a world where the rule of law is viewed as increasingly under threat and many see a rising tide of illiberalism within the United States, the decline of the lawyer-politician should give defenders of liberal democracy pause.

Now of course lawyers are going to write law review articles saying that the decline in lawyers’ political clout is a bad thing. But a 2016 paper written by political scientists Bonica and Maya Sen of Harvard together with political scientist/lawyer Adam Chilton of the University of Chicago Law School does offer some quantitative backup for the idea that lawyers are different, and perhaps better equipped to bridge political divides, than legislators with backgrounds in other fields. Of seven groups of well-educated professionals whose political contributions they tracked in the Database on Ideology, Money in Politics, and Elections, lawyers had by far the most evenly distributed political leanings. That is, they skewed leftward overall, but there was also a big concentration around the spot on the political spectrum occupied by Mitt Romney, and significant numbers at every part of the spectrum other than the far right and far left. (The least evenly distributed political leanings were found at technology firms, at newspapers and magazines, and in academia, all of which had a strong leftward skew and pretty much nobody in the middle.)

Now I’m still not quite ready to argue that what American politics needs is more lawyers. But … it might.

The research he pointed to is contained in Clark University political scientist Mark C. Miller's book "The High Priests of American Politics: The Role of Lawyers in American Political Institutions," which I have not read.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Justin Fox is a Bloomberg Opinion columnist covering business. He was the editorial director of Harvard Business Review and wrote for Time, Fortune and American Banker. He is the author of “The Myth of the Rational Market.”

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