Lawyers in Politics

Volume 2 • Issue 1 • November/December 2015
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Declining Dominance

Lawyers in the U.S. Congress

by Nick Robinson

From Abraham Lincoln to Barack Obama, lawyers have long been associated with elected office in the United States. In fact, since Independence, more than half of all presidents, vice presidents and members of Congress have come from a law background. Yet, in a recent working paper titled “The Declining Dominance of Lawyers in U.S. Federal Politics,” I show that lawyers’ once unquestioned supremacy in federal elected office is in a slow but steady retreat. In the mid-19th century, around 80 percent of the U.S. Congress were lawyers. By the 1960s, this number had dropped to about 60 percent. Today, just under 40 percent of the U.S. Congress are lawyers. The presidency has witnessed a similar pattern. While about 60 percent of all U.S. presidents since Independence have been lawyers, just four of the last 10 presidents have been lawyers.

In the mid-19th century, around 80 percent of the U.S. Congress were lawyers. Today, just under 40 percent are lawyers.

Law may still be the major occupational background for our national leaders, but in general, lawyers’ electoral fortunes are waning. This does not necessarily mean lawyers’ political power is declining overall. For example, lawyers may still have a disproportionate role in lobbying, policymaking and civil society or as thought leaders (see “Politics Outside of Office”). Charting lawyers’ changing prominence in these areas would require separate studies. Nonetheless, it is clear there is a decline in the proportion of lawyers in Congress—and this has potentially wide-ranging ramifications for a legal profession that has long viewed representing Americans in elected office as central to its identity.

The Takeaway

Lawyers’ dominance in Congress is in a slow but steady decline. Lawyers are being replaced not by a diverse cross section of Americans but instead by people from a handful of other occupational backgrounds, particularly members of a professionalized political class who have served as legislative, executive and campaign aides. The decline of lawyers in the U.S. Congress, as well as in other segments of elected office, will undoubtedly impact the profession’s public and self-identity, which has long been intertwined with elected office and political leadership.

Historical perspective

Lawyers have historically been conspicuous in U.S. politics. Twenty-five of the 56 signers of the Declaration of Independence were lawyers. Fifty-three percent of the 1st Congress were trained in law. Although well represented in this early period, the number of lawyers in Congress was to grow strikingly. It is difficult to emphasize enough how pervasive lawyers were in the U.S. Congress throughout much of the 19th century and well into the first half of the 20th. During this period, anywhere from 60 percent to 80 percent were lawyers.

In 1890 approximately one out of every 265 lawyers in the country was a current member of Congress. Today the proportion of lawyers in the U.S. population is higher, but only about one out of every 6,000 lawyers is a current member of Congress. Both statistics are remarkable, but if one was a lawyer in the late 19th century, one was part of a select political elite. As Alexis de Tocqueville remarked in the early 19th century, the lawyer’s place in U.S. society was comparable to that of a political “aristocracy.” It is a position that lawyers have never fully given up.

Chart1

Members can, and frequently are, classified as having more than one occupational background. Source: CQ Press

Congress is made up of four main occupational backgrounds: law, business, public service, and education. Those from a law background still dominate Congress—but not with nearly the stranglehold they did in the early part of the 20th century. Today lawyers represent less than 40 percent of Congress. In the place of law, new competing occupations have risen in prominence, such as business, medicine and a professionalized political class composed of political aides and members of civil society.

Methodology

This article is based on a unique data set of members of Congress from Independence to the most recent Congress. The data for members of Congress from the 1st Congress (1789–1890) to the 71st Congress (1929–1930) was compiled by extracting occupational information from the biographies of Congress members maintained in the official biographical directory of the U.S. Congress. Data on the occupational background of Congress members from the 79th Congress (1945–1946) to the 114th Congress (2015–2016) was drawn from data compiled by CQ Press.

There are limitations with the available data. For example, all CQ Press data is missing some relevant data (for example, a small number of members might have no occupation listed). This is particularly true of the current 114th Congress, perhaps because this data is more recent, so it is supplemented with data from CQ Roll Call, along with official congressional biographies. The available data also does not demarcate how long one is in an occupation before entering Congress. For example, a member who served as a congressional aide for one year and one who served for 10 years would both be demarcated as a congressional aide. Although there are a number of limitations, the data sets used are more than robust enough to show general trends in how the occupational backgrounds of congressional members have changed over time.

Lawyers find success in Congress

To understand why lawyers have been losing ground in Congress, it is useful to examine why they have historically had such success in the first place. There is no single answer to this question, and a number of factors provide a partial explanation for lawyers’ historical dominance. Part of the answer might be self-selection. According to a 2002 Knowledge Networks survey, only 5 percent of the U.S. population have ever considered running for elected office. However, Jennifer Lawless, a professor at American University, using surveys conducted in 2001 and again in 2008, found that about 58 percent of lawyers have considered running. According to Lawless, lawyers are more likely than most Americans to report having attended a state legislative meeting, interacted with an elected official socially or as part of their job, or having an elected official as a family member or friend. Lawyers might think of running for office at a higher rate because of their frequent interactions with the political process.

58 percent of lawyers have considered running for political office, according to surveys from 2001 and 2008.

There is also evidence that those who go into law have traditionally been more interested in politics in the first place. In a 1957 survey of state legislators in four states, professors Heinz Eulau and John D. Sprague found that legislators who were lawyers were significantly more likely to report that they became interested in politics in childhood than legislators who were not lawyers. Those who are interested in politics at an early age may be more likely to view a legal career as being both a historic gateway into politics and a practical platform from which to run. In other words, being a lawyer may make one more likely to go into politics, but an interest in politics may also make one more likely to become a lawyer.

In general, law is different from many occupations in which being a public official could be an obstacle to achieving further success in one’s field. Lawyers tend to have more-flexible careers that allow them to take time away from their practice or go between multiple jobs in their career. Having previously held an elected office can be a valuable prestige marker in the legal profession in a way that it may not be in other occupations, potentially being a gateway for later legal or quasi-legal positions in government or other areas of private practice or business. Indeed, holding elected office, particularly at the state level, where legislative roles have traditionally been part-time (see “Speaker’s Corner – Lawyers and Politics”), can help many lawyers further their legal careers by giving these lawyers expanded professional networks, a raised profile and the ability to attract more clients, either while they are holding office or afterward.

Lawyers in the U.S. also have a distinct advantage in electoral politics compared with other occupations: there are simply more public, and specifically more elected, offices available to them. The U.S. is exceptional among democracies in having elections in most of its states for many of its prosecutors, judges and state attorneys general. Lawyers monopolize these elected positions in the justice system, as well as appointed legal positions, providing them with more paths to higher office than those that are available to nonlawyers.

The presence of former state attorneys general in the U.S. Senate provides a useful illustration of how lawyers may benefit from this monopoly. Eight members of the 114th Congress, all in the Senate, were former state attorneys general. Besides governor, the state attorney general is arguably the most prominent statewide office one can hold in state politics and is often seen as a steppingstone to becoming governor. The position of state attorney general is exclusive to lawyers, is elected in 43 states and provides a platform with high political visibility upon which to campaign for further elected office. In the 114th Congress 51 percent of the Senate had a law background, compared with just 35 percent of the House of Representatives, continuing a long pattern of lawyers being more prevalent in the Senate than the House. Much of this discrepancy though can be explained by lawyers’ monopolization of state attorney general positions. If lawyers who had been state attorneys general were removed from the Senate and replaced with nonlawyers, then the Senate would be only 43 percent lawyers, much closer to the proportion of lawyers in the House.

In the 114th Congress 51 percent of the Senate had a law background, compared with just 35 percent of the House of Representatives,

More generally, prosecutorial positions, while not providing as prominent a position as state attorney general, arguably benefit lawyers’ electoral chances in a similar manner. Being a district attorney, U.S. attorney or other prosecutor can provide a track record of public service and a visible platform from which to run for further office. Not all these positions are elected, but many are, and, more generally, there is an accepted legal culture in the United States that being a prosecutor is a gateway for a larger political/electoral career.

Not only have lawyers’ political fortunes benefited from the set of elected and unelected legal offices they monopolize, but the bar and court system has traditionally been deeply embedded in U.S. politics. Judges in the 19th century were well known for crafting, or creating, the common law in the absence of statutory law, and today judges are still central to resolving many of the largest political disputes in the country and crafting policy. As the academic James Gordon has argued, the practice of law in the U.S. has historically been “the adjustment, in a structured and peaceful fashion, of conflicts between individuals and interests. . . . The lawyer who saw himself as a facilitator of consensus in the face of conflict was drawn to the political arena because it was the battlefield upon which the most complicated and knotty issues in American life had to be resolved.” The politicization of the U.S. legal system is both deep and wide, providing elected and unelected positions exclusively to lawyers in a legal system that orients lawyers toward public life and resolving political disputes. It should not be surprising that lawyers have historically found such an environment fertile ground for a broader political career.

Members of the House who were lawyers received 55 percent more contributions from lawyers than nonlawyer members.

Besides the politicization of the legal system, lawyers benefit from having access to more resources than most Americans. Some of these advantages are personal. Lawyers earn more than typical Americans, come from more-elite family backgrounds and frequently have flexibility in their careers to take significant time off to engage in politics. Other advantages relate to their connection to the broader profession. Lawyers can solicit campaign contributions from both other lawyers and their broader professional network, which can include the business community, wealthy individuals and unions. Members of the House who were lawyers received 55 percent more contributions from lawyers than nonlawyer members. Lawyers can leverage these advantages in campaign contributions, personal wealth and flexibility in their career for electoral benefit.

Finally, part of the reason lawyers might so dominate Congress is because the public may perceive them to be better representatives than those from other occupations. Before the prevalence of legislative aides, representatives frequently had to craft and work on proposed laws themselves. Members of the public might reasonably have concluded that lawyers were technically better equipped for this task than others, and even today, particularly at the state and local levels, some voters might have a preference for representatives with legal skills. More generally, making arguments from evidence, appealing to juries, a command of procedure, and negotiating and mediating are all skills that lawyers may use in their professional life and arguably translate well onto a political stage.

Despite widespread lampooning and degradation of lawyers by the public, people have traditionally viewed law as a high-prestige occupation and individual lawyers are often very well respected within their communities. Some voters may even perceive lawyers as having a desirable independence from business and other vested interests. As De Tocqueville noted, “In America there are no nobles or men of letters and the people is apt to mistrust the wealthy; lawyers consequently form the highest political class. . . .” In this view, lawyers are more like professor Anthony Kronman’s image of the “lawyer statesmen”—above the fray, providing wise counsel and worthy of a citizen’s trust and vote. Such a stylized view of lawyers’ position in the United States is almost certainly overly optimistic. However, while there are certainly stereotypes of ambulance-chasing lawyers, there are also well-cemented images of lawyers as advocates for civil rights and the disenfranchised, or as statesmen, that lawyer candidates may explicitly or more subtly invoke when they run for office.

A slow decline

A handful of occupational groups are challenging lawyers’ dominance and in particular an ever-growing professionalized political class.

Likely the largest reason for lawyers’ relative decline in the U.S. Congress is significant new competition in electoral politics. It might seem obvious that lawyers would face more challenges to their electoral dominance in an era when more Americans are educated than ever before. However, it is not a broad cross section of Americans that is dethroning lawyers. Rather, a handful of occupational groups are challenging lawyers’ dominance and in particular an ever-growing professionalized political class.

After World War II, the United States witnessed an increase in the number of positions for legislative, executive and campaign aides; the expansion of lobbying; the development of think tanks; and a greater professionalization of public interest work. In other words, a thick ecosystem of full-time jobs was created that revolved around the political process, particularly in Washington, D.C., and state capitols across the country. Lawyers occupied many of these new positions, but one did not have to be a lawyer to succeed in these new career paths. Indeed, most members of Congress from this professional background are not lawyers.

Those in this professionalized political class have many, if not more, of the advantages of lawyers in charting a route to elected office. They have frequent interaction with elected officials, access to a politicized donor base through their professional work, an intimate knowledge of the political system and policy issues, and a career that both allows for flexibility to run for elected life and would likely be furthered by holding elected office. Indeed, many in this political class might even benefit from running for office and losing, gaining name recognition and connections they can leverage into other political-related jobs. This ecosystem of positions allows this professionalized political class to sustain itself both inside and outside elected office during the course of a larger career in and around politics.

Chart2

Members can, and frequently are, classified as having more than one occupational background. Source: CQ Press

The above graph shows the rise of those from a “public service/politics” background in Congress, with a particular spike from the mid-1980s to mid-1990s. The CQ Press data on which the above chart is based classifies “public service/politics” and “congressional aide” separately, even though “congressional aide” could be considered a subcategory of “public service/politics.” In the 114th Congress, 29 percent of members had either a congressional aide or a public service/politics background, making this combined grouping more prevalent than “business or banking.”

The number of people coming from a congressional aide background is actually underrepresented in the chart above. According to compiled CQ Press data, 8.5 percent of the 114th Congress, or 45 members, had the occupational background of congressional aide. However, supplementing this data with CQ Roll Call data and an independent search of Congress members’ biographical profiles, 81 members, or 15 percent, had once been a congressional aide. This discrepancy between the CQ Press and CQ Roll Call data may be because CQ Roll Call was more likely to demarcate that a member had been a congressional aide, no matter how long they had this position, while CQ Press may have been more likely to demarcate such a background only if a member was a congressional aide for a substantial part of their precongressional career. Meanwhile, in the 114th Congress there were 32 former campaign aides, 26 former state legislative aides, 12 former governor aides, 11 former White House aides, as well as aides for other local, state and federal officials.

While the number of lawyers in Congress has declined since World War II, those from a business background have fared better, with their representation holding relatively steady, with a slight rise in the 1980s and early 1990s. In other words, as a professionalized political class has pushed out lawyers, this is not true of those from a business background, perhaps indicating that those in business have in fact become more competitive relative to lawyers. This may be because of the increasingly large amounts of money needed to successfully run for office.

Health professionals, particularly doctors, have increased their representation in Congress to more than 6 percent, a level not seen since the Early Republic period. The increase of doctors in Congress could be partially driven because of the expansion of health care as a part of the economy and its increased politicization. Most doctors in the current 114th Congress are Republican, and several have publicly expressed that one of their motivations to run for Congress was to repeal or amend the Affordable Care Act. Health professionals in Congress have among the highest median personal wealth of any occupational background and disproportionately used donations from other health professionals to fund their campaigns. Members of the House of Representatives from a medical background received 14.28 percent of their campaign contributions from health professionals in 2012. Meanwhile, health professionals gave just 5.14 percent of contributions to other successful congressional campaigns.

Many top lawyers no longer required large public followings to bring in business and instead rely on relationships with corporations.

Changes in the legal profession itself may be another cause for the decline in lawyers’ dominance in electoral politics. The initial increase of the presence of lawyers in electoral politics from Independence into the late 19th century may have been caused in part by the deprofessionalization of the bar in the decades after Independence as educational and training requirements were dramatically reduced in many states. After 1870 restrictions on entry into the profession began to increase, and law schools, and formal legal training, rose in prominence. As the gateway into law became more restricted, this may have reduced the number of lawyers in proportion to the educated population, and many of those interested in politics may have decided to forgo joining the bar to pursue another path.

The public face of lawyers also metamorphosed over the 19th century and into the 20th century. While in the 19th century, stories abounded of the public coming to courtrooms to listen to the oratorical skills of top lawyers and to be entertained by the cases of the day, by the end of the century, many of the elite lawyers moved from the courtroom to the boardroom, and the public seemingly turned to other entertainment options. Many top lawyers no longer required large public followings to bring in business and instead could rely on relationships with corporations or senior partners as corporate law firms began to spread across the country in the late 19th century. This evolution in the profession may have reduced the competitive advantage of many lawyers in the political arena.

As the 20th century continued and an increasingly large number of commercial lawyers started making more money, particularly starting in the 1970s and 1980s, talented lawyers may have had increased financial incentive to stay in private practice. One congressman recently noted in an opinion piece in Vox that since Congress provides “lower pay than [that received by] a first-year graduate of a top law school, Congress, like most federal agencies, is not attracting the best and the brightest in America.” At the same time, politics has become more of a full-time job, even at the state and local level, and lawyers may have to suspend their practice if elected to office. With increasing specialization and competition within law, it may simply have become more difficult for lawyers to take time off or return to practice after serving in office, lessening the appeal of spending time in an elected position. Norms have also seemingly shifted, within the bar and society, about judges going into elected office, seemingly creating a larger barrier for current or former judges to run for office.

Just as the costs of running for office have increased for lawyers, some of the benefits may have also declined. For example, lawyers once ran for political office in part to advertise their legal practices, when there were restrictions on lawyer advertising. With these restrictions eased in recent decades, there may be less of a professional reason to run.

Even among those lawyers who want to improve society, going into politics may have lost some of its attraction. The popularity of Congress, and politicians, is at an all-time low. Lawyers may simply believe Congress, and other elected offices, is not a viable avenue for social change or view politics as below their social status. A recent survey of Harvard Law School students by Shauna Shames, an assistant professor at Rutgers University, found that only 15 percent had seriously thought about running for office, compared with 19 percent of Harvard Kennedy School students (see “Running for—or from—Office?”). At the same time, many scholars and practitioners have lamented that the profession has become less public spirited and increasingly commercialized, losing its collectivist public spirit, perhaps leading to declining interest in politics.

International comparisons

The United States is not alone among democracies in having a disproportionate share of its elected politicians be lawyers. Countries like Germany, the United Kingdom and France all have disproportionate representation of lawyers in their legislative bodies. In Canada, about 17 percent of the last Parliament were lawyers. It would be worth further study to determine what types of lawyers succeed in these countries and why.

The rise of a political class has also been documented in other countries. In the United Kingdom, journalist Peter Oborne has argued that elected officials there used to be steeped in Roman virtue and Christian morals but have been pushed out by a political class that he claims has effectively become a “plundering class” moving from being legislative aides to elected officials to lobbyists with little contact with the rest of society. In Australia, Trevor Cook, a researcher at the University of Sydney, has described the rise of a professional political class there, composed of union officials, political staffers, local government councilors and party officials. He also claims that high-status barristers in Australia have turned away from politics, which is increasingly seen as a low-status occupation.

This comparison suggests that larger shifts in the occupational backgrounds of politicians may be shared across some democracies. In particular, a professionalized political class may share certain features that enable it to be particularly successful in winning elected office wherever it finds a foothold.

Unexplained Regional Differences of Lawyers in Congress

One of the great puzzles that came out of this research is the regional variation of lawyer-politicians as members of Congress. Historically, the South has been the most likely to elect lawyer members of Congress and the West the least likely. This pattern seems to have been established early in the history of the Republic. While in the 1st Congress there was no significant difference between lawyer representation from the North and South, by 1829–1830 the South and Midwest clearly elected more lawyer members of Congress than the Northeast. In 1889–1890, 87 percent of Congress members from the South were lawyers, while in the Midwest it was 78 percent, in the West 67 percent and in the Northeast 63 percent. Since World War II the South has generally elected more lawyers than other areas of the country (although in the most recent Congress, the Northeast elected more lawyers than the South).

The discrepancy among different states can be even more striking than among regions. For example, from 1945 to 2015, California had 414 representatives in Congress, of which 28.5 percent have been lawyers, while Alabama had 74 members of its congressional delegation during this time, of which 70 percent have been lawyers. These wide regional and state discrepancies may indicate very distinct legal or political cultures that impact the relationship of lawyers with politics.

Percent of congressional delegation (1945–2015) who are lawyers

Percent of congressional delegation (1945–2015) who are lawyers by state.

These regional variations present a genuine mystery. One hypothesis could be that the South might elect more lawyers, despite being Republican leaning (at least recently), because it has a particularly politicized judicial system, with more permeability between judicial and political roles.

Women lawyers in Congress

The presence of so many lawyers in Congress may have historically slowed more proportional representation of women in the body. While in the 114th Congress 33 percent of Democrats were women, only 26.4 percent of Democrats who were lawyers were women. Similarly in 2015–2017, while 9.5 percent of Republicans in Congress were women, 7 percent of Republicans in Congress who were lawyers were women.

This lawyer gender gap was once much more pronounced. Of the 31 women who served in Congress before World War II, only two were lawyers, even though during this period lawyers constituted well over half of Congress members. This trend of disproportionately low representation of women lawyers continued after World War II, as the table below shows, although in the 93rd Congress of 1973–1974, women lawyers did make a temporary surge, achieving equality in proportion with lawyers in Congress more generally. This spike might be explained by the role women lawyers played in the women’s rights movement during this era.

table

The historically low proportion of women lawyers in Congress can partially, but only partially, be explained by the fact that many women members of Congress inherited their political career from their husbands—either taking over their husband’s congressional seat when he died or continuing their electoral campaign after his death, i.e., running a “sympathy” campaign. These women who succeed their husbands’ political careers were less likely to be lawyer.

However, the death of politician husbands explains only part of the gender discrepancy. For example, of the 24 women in Congress in 1983–1985, five were women who were appointed or elected at least in part because of the death of their spouse. Still, this leaves 19 women, including three lawyers, whose success is not directly attributable to their husbands’ political careers. If this smaller sample is used, which excludes wives who succeeded their husbands, then 16 percent of these women in Congress in 1983–1985 were lawyers. In other words, even taking into account that some women follow their husbands’ footsteps in their political careers, the women who have been elected to Congress still are disproportionately less likely to be lawyers.

Instead, a likely explanation for the disproportionately low number of women lawyer members of Congress is the challenges women have historically faced in the profession. While the first women were admitted to law school in 1869, the process of opening the doors of the legal profession to women was slow. The first woman graduated from Harvard Law School only in 1953, and until the 1970s, less than 10 percent of those enrolled in J.D. courses nationwide were women (see “Women as Lawyers and Leaders”). Since the early 1990s, graduating classes at law schools have been about evenly split between men and women, but women still face many obstacles in a legal career, and we may now only be seeing the number of women lawyers in Congress we would expect because past discrimination is slowly being overcome.

The lawyer-politician

What should one make of all this? Lawyers’ close relationship with elected office has long shaped their public and self-identity. The slow but steady retreat of lawyers from higher office will likely, as a result, have a number of consequences: Talented and politically ambitious students may be less likely to attend law school and become a lawyer. A bar in which fewer lawyers go into elected office might have a less public-spirited notion of its duties toward society more generally, leading to an even greater fixation on law as a business instead of a profession. A legal profession that is more siloed away from electoral politics may also affect the larger judicial process.

The slow but steady retreat of lawyers from higher office will likely, as a result, have a number of consequences: Talented and politically ambitious students may be less likely to attend law school and become a lawyer.

At the same time, this decline may be viewed as potentially part of a larger transformation of the profession. While lawyers have long been known as quasi generalists who attain high positions of authority in numerous fields, they are facing new types of competition, and not only in politics (see “Lawyers Lacking Influence?“). For example, there has been a decline in the number of Fortune 500 CEOs who are lawyers, perhaps because of the rise of M.B.A. programs. In policymaking circles, lawyers must now vie with public policy school graduates and those with doctorates in economics and other social sciences, potentially diminishing their influence in this arena. In other words, while law may still be one of the most—if not the most—versatile degrees available, it now must compete with a variety of newer and frequently more specialized pathways to a range of careers.


 

Nick Robinson is a research fellow at the Center on the Legal Profession.

This article has been modified from the working paper “The Declining Dominance of Lawyers in U.S. Federal Politics,” available here.

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Lawyers in Politics Volume 2 • Issue 1 • November/December 2015

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