Picking an Attorney in Chief: How the Lawyers Running for President Are Portraying their Legal Experience in their Campaigns
By MICHAEL C. DORF
|Wednesday, Jan. 02, 2008
With the caucus and primary season now fully upon us, it is worth asking what kind of training and experience best prepares someone to be President of the United States. The answer depends on what aspects of the President's job one emphasizes. Article II of the Constitution assigns to the President several important duties.
The President is Commander in Chief of the armed forces. Accordingly, successful military leadership, or at least military service, has been a selling point for many Presidents, beginning with George Washington, and including Andrew Jackson, Ulysses Grant, Dwight Eisenhower, John Kennedy, and Jimmy Carter. Others--such as Lyndon Johnson and George W. Bush--have appeared to exaggerate the extent of their military service.
The President is also the nation's chief diplomat, constitutionally assigned the duty of appointing the diplomatic corps and receiving "ambassadors and other public ministers." Thus, at least in the early Nineteenth Century, the position of Secretary of State was often a stepping stone to the White House. Most notably, Thomas Jefferson, James Monroe, John Quincy Adams, and Martin Van Buren each served as Secretary of State before becoming President.
Although the Constitution vests the executive power in the President, the President also serves a vital legislative function, signing or vetoing laws. Hence, legislative experience is clearly relevant to the job. A great many of our Presidents have served in Congress, including, just since World War II, Truman, Kennedy, Johnson, Nixon, Ford, and the first President Bush. Interestingly, however, none of these Presidents was elected while holding Congressional office.
No doubt the most important domestic duty of the President is that he or she "take care that the laws be faithfully executed." This duty, in turn combines at least two sorts of tasks. In executing the laws, the President must be an executive, that is, someone skilled in running a large organization. Thus, executive experience--typically as governor of a State--comes in handy for this job, and many recent Presidents have been former Governors, among them Jimmy Carter, Ronald Reagan, Bill Clinton, and the current President Bush.
But the President is not just any old executive. He is tasked with faithfully executing the laws. For that job, one would expect that some training and experience in the law would be useful, and indeed, that has proven to be the case. Perhaps our greatest President, Abraham Lincoln, was a practicing lawyer, and others had legal training--including both Presidents Roosevelt, William Howard Taft (the only person ever to serve as President and Chief Justice of the United States), Richard Nixon, and Bill Clinton. Law schools as we know them did not exist in the early Republic, but some of our early Presidents were lawyers; chief among them was James Madison, the Constitution's principal architect.
As illustrated by the recurrence of names on even the above non-exhaustive lists, these qualifications are not exclusive of one another. Nonetheless, in the balance of this column I'll focus on legal training, both because it's what I know best and because of the prevalence of lawyers in this year's field.
The dilemma I'll highlight is this: However useful legal training may be for doing the job of President, it is at best a mixed blessing for a candidate because, not to put too fine a point on it, Americans hate lawyers. By looking at how the lawyer-candidates portray their legal experience, we can get a sense of how Americans feel about lawyers.
By most accounts, four Republicans and three Democrats have a plausible chance of winning their respective nominations: John McCain; Mike Huckabee; Mitt Romney; Rudolph Giuliani; Hillary Clinton; Barack Obama; and John Edwards.
Let's begin by putting aside the two non-lawyers, McCain and Huckabee. McCain is following one well-worn route to the White House, touting his experience as a distinguished combat veteran and long-time Senator. In times of war and terrorist threats, McCain's campaign argues, the nation should put its trust in a person with his background. Although there are obvious differences between the two men, voters should already be familiar with this theme, as it was the basis for John Kerry's unsuccessful 2004 bid for the White House.
Huckabee's experience-based claim is both familiar and novel. As Bill Clinton's example illustrates, being Governor of Arkansas can lead to the White House. But whereas Clinton was a lawyer and career politician, before entering politics, Huckabee was a Baptist minister.
Other ordained ministers have sought their parties' nomination for the Presidency: Reverends Jesse Jackson and Pat Robertson are the two most recent examples. And recent major-party candidates--most notably the current President Bush and Senator Joe Lieberman--have made their religious faith a campaign issue. But one probably has to go back to William Jennings Bryan to find a candidate whose religious convictions played as central a role in his campaign for the Presidency as Huckabee's do. Like Bryan, Huckabee is an economic populist and social conservative who does not believe in the theory of evolution.
Running Away From the Law: Romney's Strategy
One method for a lawyer-candidate to employ to neutralize anti-lawyer sentiment is to hide the fact that he or she is a lawyer. This appears to be the tactic of choice for Governor Romney. The biography page of Romney's website does acknowledge that he obtained a degree from Harvard Law School, but it does so grudgingly, at the very bottom of the page.
To be fair, though, Romney was never a practicing lawyer. He earned his law degree simultaneously with his business degree, and for most of his professional life, he was a management consultant. When not trying to persuade conservative Republican primary voters that his tenure as a relatively liberal governor of Massachusetts was all a big misunderstanding, Romney's campaign makes the argument that he will bring his managerial experience to the business of running the federal government.
The Edwards and Clinton Approaches: Spinning Law as Public Service
Hillary Clinton's campaign is not quite hiding her legal background either, but neither is it using it as a ground for her election. More than any other candidate except possibly John Edwards (about whom I comment further below), talk of Clinton's legal experience risks activating negative views about lawyers. As a partner in the Rose firm, Clinton was very generously compensated and worse, although she was never actually found to have committed any wrongful acts, her spectacular success in trading cattle futures in the late 1970s continues to cast a shadow over her ethics as a lawyer (even if unfairly so). Perhaps most damaging is guilt by association with former President Clinton, whose infamous remark in his grand jury testimony about the Lewinsky scandal, "It depends on what the meaning of the word 'is' is," seems to many people the very height of legalistic hairsplitting.
Accordingly, in her Presidential campaign, Senator Clinton mostly sells her legal experience as a form of public service. Clinton's campaign website's biography page justifiably boasts that she was "an attorney twice voted one of the most influential in America," and acknowledges that she was a partner in a law firm, but the latter acknowledgment appears on a page labeled "Mother & Advocate," and portrays her legal work in terms of advocacy for children and women's rights.
Senator John Edwards takes a similar but much more aggressive tack. Edwards made his fortune as a plaintiff-side personal injury trial lawyer. Yet rather than permit himself to be cast as an ambulance chaser, Edwards has cast his pre-political experience as continuous with his campaign on behalf of ordinary Americans against powerful interests. "Throughout his career," his campaign biography states, "John found himself on one side of the courtroom with an army of corporate lawyers on the other."
That's a nice piece of rhetorical jujitsu: invoking negative stereotypes about other lawyers as part of the argument for the Edwards candidacy. Whether it will work in the general election, should he become the Democratic nominee, remains to be seen.
Law, as in Law and Order: Giuliani Spins Himself as a Prosecutor, Not a Lawyer
A lawyer can also run a "law and order" campaign of the sort Richard Nixon ran in 1968. Fred Thompson, who was a prosecutor for part of his career, would seem an obvious candidate for this pitch, but his campaign appears to be largely based on his role as an actor portraying a prosecutor in the television show "Law and Order," which may explain his failure, thus far, to captivate many potential voters. The real "law and order" candidate in 2008 is Mayor Rudy Giuliani.
In perhaps the most memorable line from a season of unmemorable pre-primary debates, Senator Joe Biden said that there are only three things Rudy Giuliani "mentions in a sentence: a noun and a verb and 9/11." There is much more than a grain of truth to that complaint, but certainly not the whole truth.
Giuliani earned the nation's admiration in the hours and days following the 9/11 attacks for his calm and resolve--admirable qualities, to be sure, when under attack, but Giuliani's campaign argues that he will keep the nation safe from further attacks, not just that he will project calm and resolve if we are attacked again. To make that argument, Giuliani touts the fact that crime rates dropped during his tenure as New York mayor and portrays himself as an all-around tough guy who can and will stand up to foreign threats in the same way he has stood up to domestic ones.
Giuliani's experience as a lawyer dovetails nicely with this argument for, as Associate Attorney General and U.S. Attorney for the Southern District of New York during the Reagan Administration, Giuliani burnished his reputation as a crime fighter. Although Americans do not put their unconditional trust in prosecutors--think of the appalling Michael Nifong example in the Duke lacrosse case --the negative stereotypes of lawyers as mere hired guns do not typically attach to prosecutors.
Seen in broader perspective, Giuliani aims to use his experience as an attorney in roughly the same way as both Clinton and Edwards do: as a form of public service.
Lawyer as Conciliator? Obama Spins Himself as a Peacemaker and Uniter
The same could be said of Barack Obama. In a not-too-subtle jab at Clinton and Edwards, the Obama campaign sometimes points out that instead of using his Harvard Law degree to make a killing representing clients for money, he spent the bulk of his pre-legislative career as a community organizer and civil rights lawyer.
Yet in one important respect, Obama's campaign is different. Whereas Clinton, Edwards and Giuliani all portray themselves as candidates whose legal experience involved fighting for the rights of ordinary people--children and women for Clinton, the poor and injured for Edwards, and crime victims for Giuliani--Obama presents himself as a conciliator, someone who, to borrow George W. Bush's phrase, is a uniter, not a divider.
Time will tell whether Obama's theme of unity will lead him to the Presidency. To the extent that unity entails compromise, this seems a better tactic for a legislator than an executive, as legislation is famously the art of compromise. No doubt, the Obama campaign would characterize his willingness to work on problems on a bipartisan basis as important for Presidents no less than Senators.
Obama's campaign highlights an important fact about the legal profession often overlooked by the public: Good lawyers help their clients--whether paying or not--to avoid conflict; they do not court it.
With all of these lawyer-candidates explaining how their work as attorneys served the public interest, can one expect any improvement in the (dismal) public image of lawyers? Probably not. But after the arrogance and fecklessness of the current "MBA Presidency," it should not take very much for the next lawyer President to demonstrate the benefits of legal training and experience.