Politicization of the Legal Profession

Recent news reports have frequently leveled criticism at the U.S. Supreme Court, leveling charges of politicization and claiming that it faces a crisis of legitimacy. Less frequently covered has been the broader politicization of the legal profession in the United States, presumably because many media outlets support politicization – so long as it is in the direction they desire.

Gallup polls of U.S. public perception regarding honesty and ethics in professions found in 2022 that lawyers were perceived as having “very high” honesty and ethics only by 3% of respondents (range 1-6% from 1976 to 2021) and “high” honesty and ethics by 18%.[1] Attorney Staci Zaretsky wrote on “Above the Law” that “lawyers are ranked on par with prostitutes when it comes to trust.”[2]  

A study by the Chamber of Commerce Institute for Legal Reform found, in the words of the Wall Street Journal editors, that "the total economic cost of the U.S. tort system in 2020 was $443 billion...That's 2.1% of GDP, and it works out to $3,621 per household."[3]  They note that trial lawyers  constitute a special interest working contrary to the interest of mainstream Americans, who pay for exorbitant legal awards in the form of higher prices. This essentially amounts to a regressive "tax" with disproportionate impact on low-income working families, even as the privileged legal elite ironically represent themselves as champions of the powerless.

Lawyers, too, have long occupied a privileged place in U.S. politics.  The New York Times wrote in 1964 that "of the 535 members of the 88th Con­gress, no less than 315 are lawyers.[4] Sixty‐six of the 100 Senators have had legal training, as have 57 per cent, or 249, of those in the House"[4]  The Times noted that "it may well be that the Congress has too many lawyers for its own—and the nation's—good."  In 2021, some 175 members of Congress held law degrees.[5] Such figures demonstrate the disproportionate political power wielded by a small group that constitutes just 1.3 million of the United States' approximately 334 million inhabitants, or less than 0.4% of the U.S. population.  

Not only is the judicial branch of government the exclusive purview of lawyers, but they also occupy an extremely disproportionate share of legislative and executive positions, with the imbalance most severe at the highest levels.  There is no mystery as to why those seeking to place those with particular political vision at the levels of power would seek ideological hegemony in law schools as one of society's foremost power centers.

Bias in the Legal Profession

The Harvard Gazette acknowledged that lawyers generally identify with leftist politics, elite lawyers even more so, and law professors extremely so.[6]  The nonpartisan group Open Secrets records that “each cycle, [political campaign] contributions from” lawyers and law firms “favor Democrats by a significant margin.”[7]  Open Secrets further documents that “politically embedded law firms frequently show up in the Center for Responsive Politics' Revolving Door database” in the “revolving door” between the public and private sectors that involves “privilege, power, access and, of course, money.”  

Law Professors and Law Schools

Letters signed by hundreds or thousands of law professors are intended to carry weight as pronouncements of ostensibly fair and knowledgeable experts defending the integrity of the American judicial system. Jeff Sessions' appointment to the office of attorney general was criticized in a letter signed by over 1,000 law professors.[8]  Over 2,400 law professors signed a letter opposing Brett Kavanaugh's nomination to the Supreme Court as “unfathomable.”[9] Similarly, over 80% of faculty at George Washington University Law School condemned then-Attorney General William Barr and demanded his resignation.[10]

Subsequently, many of the same professors who opposed Judge Kavanaugh downplayed or ignored more substantive allegations against Joe Biden.[11] Some have since acknowledged that opposition to Kavanaugh was not based on a belief in the credibility of the allegations, regarding which some have since acknowledged skepticism (contrary to their early public letter). but on other, presumably ideological, factors. Public grandstanding and outraged letter-writing from law faculty have been conspicuously absent in the face of alleged judicial abuses of leftist administrations,[12] notwithstanding congressional hearings.[13]

Harvard political science associate professor Maya Sen noted that the anti-Sessions letter “was very quickly dismissed by political observers and by political actors. At Sessions’ hearing, the letter was brought up and mocked, everyone had a good laugh and then it was just set aside.” Sen observed that “having more ideological diversity would benefit the legal academy and the legal profession more broadly,” and is essential for “public credibility and public trust.” Letters circulated by law professors before and since have been cited for pervasive ideological biases.

Law schools, too, have been accused of becoming breeding grounds for intolerance and hate speech, applauding antisemitism, leftist extremism, and denigration of law enforcement [14] while celebrating the bullying, taunting, and deplatforming invited speakers with different views.[15]  Some law student groups have invoked systematic exclusion of supporters of Israel, drawing belated rebuke from administration.[16]  

Such conduct involves pre-judging, the very definition of prejudice, often on the basis of ideological agendas, rather than careful weighing of facts and evidence. Yet individuals who behave contrary to fair process and ethical standards are permitted to teach at elite taxpayer-subsidized law schools.

These are institutions which receive vast amounts of federal tax dollars and whose graduates and professors occupy privileged roles in governance.  Critics have noted the dystopian future with those with extreme prejudice and intolerance toward ideological opponents and unfavored groups -- qualities antithetical to the Constitutional representative government they profess to uphold and its guarantees of "equal justice under law" -- become judges, prosecutors, and lawyers deciding outcomes for others and for society. Economist Thomas Sowell wrote:

• “When people ask for Supreme Court justices with ‘compassion’ or with ‘sensitivity,’ what are they asking for, except people who will lean the way they want justices to lean? An even-handed application of rules is a demanding job and a heavy responsibility. Even an umpire cannot have ‘compassion’ or ‘sensitivity.’ He can either call them honestly as he sees them or prostitute his profession by leaning toward pitchers or batters or base runners. When courts of law become courts of political correctness, those who suffer are not just those who lose particular cases. The whole society loses.”[17]

Nonprofit Advocacy Groups

The so-called American Democracy Legal Fund, a nonprofit founded by a Clinton ally, has been criticized for “existing only to sue Republicans for ethical and campaign finance violations” while ignoring violations by leftists.[18] Other ostensibly “nonpartisan” legal watchdog groups have been charged with similar biases.

Systematizing Bias

The American Bar Association is noted by attorney Mark Pulliam to be a “liberal organization whose policy positions are often indistinguishable from those of the ACLU and other activist groups.”[19]  He wrote that the ABA is a “cartel effectively given monopoly control over legal education” due to its “unwarranted role—granted by state supreme courts—as accreditor of institutions whose graduates are permitted to sit for bar examinations necessary to practice law” and power granted it by the U.S. Department of Education to “determine which law schools are eligible for federal student loans.”  Pulliam observed that “the ABA meddles in law school admissions, governance, and even curriculum.” In a 2018 essay, he wrote:

• “One reason that law schools are becoming monolithic social justice academies and ideological echo chambers is that the ABA—in its capacity as regulator—is pushing them to do so. The ABA has too much control over accreditation standards that have little or nothing to do with maintaining the quality of legal education, and everything to do with promoting a leftist ideological agenda.”[20]

These and other abuses demonstrate the brokenness of the system and the need for external accountability in the face of the legal profession’s failure to self-regulate.

References

[1] “Honesty/Ethics in Professions.”  Gallup Poll, 1976-2022. https://news.gallup.com/poll/1654/honesty-ethics-professions.aspx.

[2] Zaretsky, Staci. “Scientific Study Concludes No One Trusts Lawyers.” Above the Law Blog, September 24, 2014. https://abovethelaw.com/2014/09/scientific-study-concludes-no-one-trusts-lawyers/

[3] WSJ Editorial Board. "How Lawsuits Cost You $3,600 a year." Wall Street Journal, December 11, 2022. https://www.wsj.com/articles/how-lawsuits-cost-you-3-600-a-year-tort-system-chamber-of-commerce-institute-for-legal-reform-report-11670460820

[4] Hacker, Andrew. "Are There Too Many Lawyers in Congress?"  New York Times, January 5, 1964.  https://www.nytimes.com/1964/01/05/are-there-too-many-lawyers-in-congress.html

[5] "Attorneys in the 117th Congress." American Bar Association, January 26, 2021. https://www.americanbar.org/advocacy/governmental_legislative_work/publications/washingtonletter/january-2021-wl/attorneys-117thcongress/ 

[6] Gauging the bias of lawyers." Harvard Gazette, August 2017. https://news.harvard.edu/gazette/story/2017/08/analyst-gauges-the-political-bias-of-lawyers/

[7] Open Secrets. https://www.opensecrets.org/industries/indus.php?ind=k01, accessed August 20, 2023.

[8] Wang, Amy X. “Objection! Thousands of professors from 176 US law schools oppose Trump’s attorney-general pick." Quartz, January 4, 2017. https://qz.com/877812/thousands-of-professors-from-176-us-law-schools-oppose-jeff-sessions-donald-trumps-attorney-general-pick/ 

[9] Svrluga, Susan. ‘Unfathomable’: More than 2,400 law professors sign letter opposing Kavanaugh’s confirmation." Washington Post, October 4, 2018. https://www.washingtonpost.com/education/2018/10/04/unprecedented-unfathomable-more-than-law-professors-sign-letter-after-kavanaugh-hearing/

[10] Adams, Susan. "Scathing Letter By George Washington University Law School Faculty Condemns Attorney General William Barr." Forbes, June 26, 2020. https://www.forbes.com/sites/susanadams/2020/06/26/scathing-letter-by-george-washington-university-law-school-faculty-condemns-attorney-general-william-barr/

[11] Re, Gregg. "As Biden gives commencement address, Columbia Law faculty who opposed Kavanaugh downplay Tara Reade accusations." Fox News, May 20, 2020. https://www.foxnews.com/politics/biden-columbia-faculty-kavanaugh-tara-reade

[12] Shapiro, Ilya. "Top 10 Ways Obama Violated the Constitution during His Presidency." Cato Institute, January 19, 2017. https://www.cato.org/commentary/top-10-ways-obama-violated-constitution-during-presidency

[13] "Obama Administration's Abuse of Power." Hearing before the Committee on the Judiciary, House of Representatives. September 12, 2012. https://www.govinfo.gov/content/pkg/CHRG-112hhrg75846/pdf/CHRG-112hhrg75846.pdf

[14] Campanile, Carl. "CUNY Law Dean applauds student’s ‘hate speech’ against Israel, NYPD, and military." New York Post, May 30, 2023. https://nypost.com/2023/05/30/cuny-slam-students-hate-speech-against-israel-nypd-military/

[15] Alexander, Harriet. "Blood-boiling moment woke Stanford law school students taunt conservative judge invited to speak there - before dean of 'equity' ambushes him with pious speech accusing him of 'harm.'" Daily Mail (UK), March 11, 2023.  https://www.dailymail.co.uk/news/article-11847117/Stanford-law-equity-dean-piously-accuses-conservative-judge-invited-speak-doing-harm.html

[16] "UC Regents Chair Richard Leib statement on UC Berkeley School of Law." UC Office of the President, October 13, 2022.  https://www.universityofcalifornia.edu/press-room/uc-regents-chair-richard-leib-statement-uc-berkeley-school-law

[18] Sowell, Thomas. The Thomas Sowell Reader (2011). Basic Books: Kindle Edition.

[18]  “David Brock.” Influence Watch, https://www.influencewatch.org/person/david-brock/ [accessed August 20, 2023].

[19] Pulliam, Mark. “The ABA's Long March Continues.” Law and Liberty, August 24, 2021. https://lawliberty.org/the-abas-long-march-continues/

[20] Pulliam, Mark. “Who Runs the Legal Academy?” Law and Liberty, May 2, 2018. https://lawliberty.org/who-runs-the-legal-academy/