Abstract
Roger Davidson and Nelson Polsby have both argued that social scientists have missed some of the very important effects that legislators' legal training has on the legislative process. Although lawyer members dominate the U.S. Congress, there has been little study about how their legal training affects Congress as an institution. Contrary, to the conventional wisdom, this study finds that lawyers have more positive attitudes toward the courts, are less likely to see the courts as politically motivated, are less willing to strip the courts of jurisdiction, and see congressional reaction to the courts as non-routine. Various scholars have claimed that the federal courts are protected from congressional attacks because of their prestige and because of their special role in our governmental system. These arguments capture how the lawyers in this study view the courts. Thus the behavior of many legislators is affected by their legal training and socialization.
Since the time of de Tocqueville (1841), students of American government have noted the over representation of lawyers in American politics (se e.g., Hyneman 1940; Hurst 1950; Matthews 1954, 1960; Schlesinger 1957; Derge 1959; Eulau and Sprague 1964; Keefe and Ogul 1989: 117-18). And it seems that the more important the political office, the more lawyers who occupy that office. Therefore, Matthews (1954: 30) has labeled lawyers, "The High Priests of American Politics."
The conventional wisdom has been that there are no important differences between lawyer and non-lawyer politicians. This conventional wisdom arose in large part because much of the empirical work on this topic from the 1960s and 1970s, based almost entirely on legislative roll call vote analysis, found few differences between the voting behavior of lawyers and non-lawyers in American legislatures. At the floor vote stage in Congress, these differences are probably masked by other forces that affect the floor voting decision (see Hall and Grofman 1990; Henschen 1983). As Jewell and Patterson conclude, "The roll call is a significant, but not always decisive, step in the decisionmaking process. At one of the earlier stages in the legislative process, negative decisions may have precluded a roll call vote, or a positive decision... may have ensured consensus and unanimity in the vote .... [Thus,] roll call statistics can reveal how legislators vote .... [but] the roll calls cannot explain why legislators vote that way" (1986: 220-221, emphasis in original).
Recently Roger Davidson (1988,1990) and Nelson Polsby (1990) among others have argued that social scientists have missed some of the very important effects on the legislative process that are caused by the politicians' legal training. As Davidson concludes, "The demographic composition of Congress doubtless affects its functioning as a social group. Members of the U.S. Congress, like those of other legislative assemblies, are more alike than different. This makes it hard to isolate the effects of differing backgrounds on their behavior. But it should not blind us to the subtle power of background characteristics" (Davidson 1990: 52). And as Philip Duncan (1991: 87) reminds us, the behavior of many politicians is probably most affected by their prior experiences in the working world.
Responding to Levine's (1990) and Abel's (1980) calls for more sociolegal research on legislatures, this article will explore differences between lawyer and non-lawyer members of Congress in their general attitudes towards the federal courts. It contributes to understanding of how legislatures function, by focusing on whether the general approaches and attitudes of members differ according to whether the member is a lawyer or non-lawyer.
The article brings a neo-institutional perspective to this study of court-Congress interactions. March and Olsen (1984,1989) have argued that political scientists need to re-examine the effects of institutional context on political behavior. As used by Epstein, Walker, and Dixon (1989) among others, the neo-institutinal approach combines the traditionalist scholar's interest in understanding governmental bodies as institutions with the behavioralists' emphasis on empirical, individual level research. In other words, the neo-institutionalist perspective combines the micro-level study of individual behavior with the macrolevel sensitivity to the institutional factors that help shape that behavior. As Fiorina has stated, "To a greater degree than behavioral political scientists have acknowledged, institutional arrangements shape individual incentives, which in turn affect behavior. Both formal institutions and informal ones, such as custom or practice, are important" (Fiorina 1990: 444). Other recent examples of the neo-institutional approach include McCubbins and Sullivan (1987); Smith (1988,1989); Hall and Brace (1989,1992); Atkinson and Nigol (1989); Cameron, Cover, and Segal (1990); Searing (1991); and Gates (1991).
The U.S. Congress has long been dominated by lawyer-politicians. Friedman notes that, "From 1780 to 1930, two thirds of the senators and about half of the House of Representatives were lawyers; the percentage seems to have stayed fairly stable" (Friedman 1985: 647). As Table 1 indicates, at the beginning of the 101st Congress in 1989, 184 members (42%) of the U.S. House of Representatives were lawyers (47% of the Democrats and 35 % of the Republicans). Sixty-three senators were lawyers, roughly equally distributed between the two parties (Ornstein, Mann, and Malbin 1990: 20-21, 26-27). At the beginning of the 102nd Congress in January, 1991, 244 of the 535 members of both houses (46%) claimed attorney as their profession (Congressional Quarterly Weekly Report 1/12/91: 118).
While scholars agree that lawyers have often been over represented in American political institutions, there is less agreement on why this is so. Some argue that because attorneys are in a high status occupation, American voters tend naturally to choose them for political office (see e.g., Matthews 1954: 30, restating de Tocque-ville's main arguments). Max Weber (1946: 85) has stated that lawyers are better able to practice politics because they can enter and leave politics without damaging their legal careers. Others have argued that attorneys bring special skills and training to politics, which give them major advantages over non-lawyers (see e.g., Gold 1961; Hain and Piereson 1975; Tickamyer 1981; Nelson and Heinz 1988; Davidson 1988: 91; Keefe and Ogul 1989: 118)..Some argue that lawyers are attracted to political office as a way to advertise and gain name recognition in order to attract more clients for their law practices (see Barber 1965: 67-69; Friedman 1985: 646-47; Gordon 1980: 78-79).
Some scholars argue that the American political culture prefers to judge political results by legal standards (Eulau and Sprague 1964: 15; Polsby 1990: 114), thus viewing "the legal profession as the legitimate source of public leadership" (Derge 1959: 408). Polsby argues that, "The fact that Americans maintain such a busy legal system, with frequent recourse to the legal determination of rights and responsibilities, encourages the spread of legal norms and legal personnel to areas of life where they might not otherwise be found in great numbers. This definitely includes the occupation of lawmaking" (1990: 114). And some have argued that lawyers are influential in politics because they define and represent all sides in American political debates (Melone 1980: 229). Nelson and Heinz report that one of their law students concluded, "It is as natural to find lawyers in legislatures as it is to find chefs in a kitchen. Lawyers make law, after all. That's what they do" (1988: 261).
The abundance of lawyer-politicians in the United States has led to questions about whether the behavior of lawyers in American legislatures is different than the behavior of non-lawyers. Many scholars have assumed that lawyer politicians act differently than do non-lawyer politicians (see e.g., Schlesinger 1957; Schubert 1960; Wasby 1970; and Halper 1970). Morgan's interviews with members of Congress in 1959 found several differences between lawyer and non-lawyer members, including the fact that non-lawyer members were much more willing to pass constitutional questions on to the courts than were the lawyer members (Morgan 1966: 156-57, 336, 343-44).
With the notable exception of Morgan's work, however, much of the empirical work from the 1960s and 1970s, based mostly on roll call vote analysis, found no differences between the behavior of lawyers and non-lawyers in legislative bodies (see e.g., Derge 1959, 1962; Gold 1963; Schmidhauser et al. 1971; Green et al. 1973; and Berg et al 1974). Finally, Eulau and Sprague (1964) published their landmark work on lawyers in politics, which established the conventional wisdom that lawyer and non-lawyer politicians do not behave differently because of the convergence of the professions of law and politics.
Despite the conventional wisdom, doubt about the lack of differences between lawyers and non-lawyer legislators continues (see e.g., Kemp 1986; Barnhizer 1988). These doubts are reinforced by some of the more recent empirical works on this subject (see e.g., Dyer 1976; O'Connor et al. 1978; Engstrom and O'Connor 1980; and Melone 1980).
As part of a general article on the legislative process, Roger Davidson (1988: 91-93) recently hinted that he also believes that lawyers and non-lawyer politicians approach the courts differently, and that the predominance of lawyers in Congress greatly affects the total legislative process. After citing the empirical works that found few differences between lawyer and non-lawyer legislators, Davidson concludes that, "One suspects, just the same, that social scientists may have missed the more subtle effects of legal training on the legislative process. Oral debates and written reports display lawmakers' intense fascination with legal procedures, concepts, and terminology. And members often reveal a knack for turning substantive issues into matters of legal or procedural detail -- perhaps a belated manifestation of legal training" (Davidson 1988: 92).
Nelson Polsby (1990) seems to agree that social scientists have missed many of the important effects of the members' legal training on the legislative process. Polsby notes that, "Not only do a great many lawyers serve in Congress; the occupational culture of Congress is dominated by lawyers' ways and lawyers' jargon. Committees are organized to elicit 'information by 'holding hearings' in which 'witnesses' 'testify' and are examined 'on the record' by questions from members and staff. At least one high-ranking staff member, and usually more than one, is a lawyer and is known as 'counsel' to the committee. Hearings make the legislative record that surrounds legislation" (Polsby 1990: 114). Thus legal training appears to affect how lawyer-legislators go about performing their legislative duties.
The question then arises, what then are the effects of legal training on lawyer-politicians? Law school is of course the first step in legal training and socialization into the legal profession in this country. As Zemans and Rosenblum note, "The enormous influence that lawyers wield in both the public and the private sectors makes their professional development of particular concern in a democratic society" (1981: 1). Rathjen concludes, "Clearly the law school experience is the single most notable part of the socialization process that distinguishes lawyers from other participants in the political process. Many believe that the practice of law itself has a long term impact on shaping and developing legal and political beliefs, attitudes and values" (1976: 86).
Various scholars have examined the effects of general professional socialization and training on the individuals involved (see e.g., Hall 1948; Hughes 1958; Lortie 1959; Becker et al. 1961; Vollmer and Mills 1966; Moore and Rosenblum 1970; Larson 1977). It seems that in general professional education and socialization into a profession affect how individuals understand the world around them. Geison (1983) talks of professions and professionals taking on a "professional ideology and rhetoric" that shape the way individual members of the profession understand their world. Moore and Rosenblum (1970) note that professional socialization involves noticeable changes in the individual in order for that person to become a part of the closed professional fraternity. As two other scholars note, "Professional schools are highly invasive institutions which exert intense control by purposely influencing beliefs, values and personality characteristics of students; and law schools appear to be the most invasive among all graduate education" (Shanfield and Benjamin 1985: 65).
In other words, professional training produces changes in individuals which stay with them throughout their subsequent careers. Larson (1977) argues that the self-esteem of individuals is tied directly to their professional self-image, and that professional socialization affects the individual's long-term personality and behavior. This scholar concludes, "The heavy investment of time, energy, and money that most professions require... effects a particularly strong identification of the person with the role, both subjectively and for others; you cannot really unfrock a priest, unmake a doctor, or disbar a lawyer" (Larson 1977: 229).
American lawyer-politicians may share a common approach to the world because American legal training is very similar regardless of the law school attended (see Thorne 1973: 152; Hegland 1983: 3). As Thorne argues, "Law schools have developed a distinctive subculture, a set of rituals and experiences which serve as much to initiate and haze as to teach recruits the skills and knowledge of the profession" (1973: 155). Several scholars have examined attitudinal changes in individuals that occur during law school (see e.g., Warkow and Zelan 1965; Stevens 1973; Rathjen 1976; Carrington and Conley 1977; Erlanger and Klegon 1978; Himmelstein 1978; Hedegaard 1979; Auerbach 1984; Elkins 1985; Granfield 1991). Thus law schools can produce dramatic changes in the ways individuals think and view the world around them.
One of the chief goals of American law schools is to teach students to "think like a lawyer" (see Erlanger and Klegon 1978; Bell 1989; Moll 1990; Wice 1991). What does "thinking like a lawyer" mean? Turow's (1977) now classic book, One L, gives a detailed explanation of the many changes that occur in an individual during the first year of law school. Regarding learning to think like a lawyer, Turow quotes a friend as saying:
"They're turning me into someone else," she said, referring to our professors. "They're making me different." I told her that was called education and she told me, quite tightly, that I was being flip. "It's someone I don't want to be," she said. "Don't you get the feeling all the time that you're being indoctrinated?" (Turow 1977: 83).
Thurow continues his contemplations on "thinking like a lawyer" by saying:
There was a sort of mood to legal thinking which I found plainly unattractive .... Thinking like a lawyer involved being suspicious and distrustful. You reevaluated statements, inferred from silences, looked for loopholes and ambiguities. You did everything but take a statement at face value .... What that all showed me was that the law as a way of looking at the world and my own more personal way of seeing things could not be thoroughly meshed; that at some point, somehow, I would have to learn those habits of mind (Turow 1977: 85-86).
Others have also discussed what it means to "think like a lawyer." Blaustein and Porter note, "It is of course true that legal training and law practice develop certain traits of mind which most lawyers have in common. These prevailing professional attitudes would certainly include a preference for the case-by-case approach in attacking a problem, skepticism toward broad doctrinal generalizations, and a strong desire to seek out the precedents for any projected course of action" (1954: 100). Van Loon (1970: 337) argues that legal training ensures that lawyers view the world through the eyes of "purely logical reasoning" at the expense of any consideration of broader values. In a study of the Justice Department's Antitrust Division, Weaver (1977) describes the lawyers' approach to their work as very detached, nonideological, analytical, professional, aggressive but not moralistic, and without a broad vision or passion for the long-range effects of their work. Thus thinking like a lawyer means being cold, unemotional, analytical, and calculating (see Minow 1990). Minow argues, "The basic method of legal analysis requires simplifying the problem to focus on a few traits rather than the full complexity of the situation, and to use those traits for the comparison with both the governing rule and the precedents that could apply" (1990: 2).
Not everyone approves of such a high number of lawyer-legislators. Mark H. McCormack (1987), in a stinging attack on the legal profession, argues that all lawyers have similar personalities because of the socialization effects of law school. McCormack tells his readers, "Now think about the lawyers you are acquainted with .... Chances are they have in common a certain solemnity of aspect and formality of expression, a `lawyerliness' that shows even in their smallest gestures" (p. 41). McCormack (pp. 42-44) also talks about the "intellectual habits" of lawyers who must become argumentative, analytic, competitive, and narrow. Thus McCormack argues that law school produces major changes in how individuals see the world around them. He also argues that the peculiar world view of a lawyer remains with legally trained individuals throughout their professional lives.
Hacker (1964) has written that the high proportion of lawyers in the U.S. Congress slows down the work of that body because lawyers "have the habit of splitting hairs and worrying unduly about the possible interpretation that could be made of every word and punctuation mark" (p. 74). Lawyers in Congress are also more parochial than non-lawyers, and they prevent the use of imaginative solutions to our nation's problems, according to Hacker. The lawyers' "concern for technicalities and niceties of language" may in reality be attempts to prevent the Congress from taking action on various needed reforms (ibid.).
Echoing these feelings, Adler and Bellush have concluded that the high percentage of lawyer-legislators does not "accord well with strict democratic theory. . . . Presumably, lawyers have something of a head start with the public. Many people may assume that, since the business of legislatures is making laws, it should be entrusted to people who' know how law works. It might be different if voters asked whether lawyers as such are especially skilled in understanding how society works" (1979: 244-45). Jenrette has also noted that, "Some people feel the legal profession has dominated Congress too long. They advocate diminishing the number of attorneys in public office. But I do not think any professional group will climb to the sheer numbers that the legal profession has enjoyed in Congress" (1977: 27).
The data for this study come primarily from semi-structured interviews with over 75 members and staff of the U.S. House of Representatives conducted during the summer of 1989 (see Apendix). All the members and staffers interviewed served on at least one of three House committees: Judiciary, Energy and Commerce, and Interior and Insular Affairs. I was able to interview personally 42 members of Congress who serve on at least one of the three committees, and 35 key staff (23 committee staff and 12 key personal staff). The interviews involved an open-ended question format that was designed to elicit the most information in the shortest amount of time. Notes were taken during the interviews, and details were added to the notes immediately following the interviews, which is the technique preferred by Peabody et al (1990) and is very similar to the system that Kingdon (1989) used to interview members of Congress in his landmark work.
The analysis is based on combined responses from members of Congress and from key staff who stated that they could speak on behalf of their bosses on these issues. When attempting to gain insights into the behavior of congressional committees, it is essential to interview both members and staff. As Aberbach stresses, "Staffers are undoubtedly better informants [than committee members] about many aspects of committee life because their work time is devoted almost entirely to the committee's tasks, and they play a crucial role in most of the decisions made" (1990: 227). For further discussions of the importance and role of congressional staff, see Dexter (1969); Fox and Hammond (1977); Malbin (1979); Salisbury and Shepsle (1981a, 1981b); and Jewell and Patterson (1986: 157).
Other scholars have also used staff responses as surrogates for the responses of the members of Congress themselves (see e.g., Bullock 1976; Hall 1987; Smith and Deering 1984, 1990). All of the congressional staffers in this study were carefully chosen and were asked background questions concerning their title and responsibilities in the office, the length of time they had worked for their employer, and how regularly they spoke on behalf of their bosses. The staffers were also asked to clearly distinguish their own personal opinions from the opinions of their employers.
Many lawyer politicians see clear differences between themselves and non-lawyers in the legislature (see e.g., Morgan 1966: 28, quoting the late Senator Jacob Javits; Jenrette 1977; Abourezk 1977; and Kastenmeier and Remington 1988). One member of the U.S. House Judiciary Committee expressed during the interviews his strong preference for working with other lawyer members when he said, "[House] Judiciary is special because there are so many lawyers there." Another lawyer member certainly understated his view of the distinction between attorneys and non-attorneys in Congress when he noted, "The only real difference between the lawyers and the non-lawyers in Congress is that they [the non-lawyers] have a harder time understanding the process. Lawyers have an easier time understanding what goes on around here."
Very few members of Congress in my study would admit that there were any important differences between lawyers and non-lawyers in Congress. But a few representatives did volunteer that they were lawyers, and that is why they treated court cases differently than their non-lawyer colleagues. For example, one lawyer member told me, without any prompting, "You should draw a distinction in your research between lawyer and non-lawyer members of Congress. Lawyers are more willing to accept court decisions as fait accompli than are non-lawyer members." Citing another important difference between lawyers and non-lawyers, another lawyer member declared, "Lawyers in Congress have more awareness of the impact of legislative history and the dangers of ex parte communications. Lawyers are more familiar with administrative procedures. Non-lawyers tend to see unnecessary red tape in administrative and judicial procedures. Lawyers understand the necessity of proper procedures. But sometimes lawyers get caught up in the details; non-lawyers don't get so trapped in the details of legislative language."
Most of the committee counsels and other staffers interviewed in the U.S. House report noticing clear differences between lawyers and non-lawyers who serve on their committees. During background conversations, U.S. House Judiciary Committee staffers, all lawyers themselves, strongly implied that they preferred working with only lawyer members on the committee. They all seemed to feel that non-lawyer members would have a very difficult time understanding the legalistic subject matter within the committee's jurisdiction. They also implied that non-lawyers would not give committee decisions the special care and consideration that these staff felt these decisions deserved.
While some staff could not tell me which members on their committees were lawyers and which were not, most staff seemed automatically to see a clear distinction between lawyer and non-lawyer members. One congressional staffer noted, "On [the Energy and Commerce Committee], the staff knows who is a lawyer and who isn't. Naturally, the staff treats them differently." An Interior Committee staffer observed, "We have fewer lawyers on our committee than on most. But the lawyers we have aren't real lawyers like they have on Judiciary. Most of our lawyers haven't practiced for years. The ones that act like real lawyers are obvious on the committee." One committee staffer who is a lawyer hinted that the subcommittee counsel get very frustrated with the ignorance of non-lawyer members. The staffer commented, "Non-lawyers in Congress do not understand the law like the lawyer members do. The non-lawyers react very differently without understanding all the implications."
Another staffer expressed a preference for working with attorneys by declaring, "Because of their training and discipline, lawyer members see the importance of nuance and wording. They also ask tougher questions of witnesses." A House Energy and Commerce staffer declared, "The non-lawyer members on the committee don't understand the importance of the lower federal courts. Non-lawyer members underestimate the effects of lower court decisions. Many see the lower courts as irrelevant. They only react to Supreme Court decisions. But the lower courts are setting policy in our area." One non-lawyer staffer noted clear differences in approach between lawyer and non-lawyer members. This staffer stated, "My boss always acts in a lawyerlike manner, and it shows with other members. The members' legal training impacts how they argue cases and how they view legislation. Bill drafting is easier for lawyer members; they understand the importance of proper drafting. But sometimes there is a better give and take with the non-lawyers. For example, the late Mickey Leland [a non-lawyer representative and former member of the Energy and Commerce Committee] always pointed out the human side of the issue, not just the legalistic side."
As an additional challenge to the conventional wisdom about the lack of differences between lawyer and non-lawyer legislators, this study reveals some clear differences in their attitudes toward the courts. As Table 2 indicates, in general lawyer members of Congress tend to hold much more positive attitudes towards the courts as an institution than do the non-lawyer members. The lack of negative attitudes towards the courts among lawyers is especially telling. Because of their legal training and background, lawyers have a much better understanding of how the courts work and why they make the decisions they do. All attorneys admitted to the bar are considered officers of the court. Thus despite the conventional wisdom, it should not be terribly surprising that lawyer members see the courts somewhat differently than do non-lawyer members.
In order to explore further these differences between lawyers and non-lawyers, it is useful to examine this distinction while controlling for other possible factors that could be causing these differences. The committee of membership is one factor that could affect a representative's general feelings about the courts. Table 3 shows that there are only very small differences in general feelings toward the courts based on congressional committee of membership.
Table 4 further tests whether the committee of membership has a strong effect on the general views of the courts among members of Congress. Because the U.S. House Judiciary Committee is comprised exclusively of attorney members, and very few attorneys serve on the Interior Committee, this analysis will now turn to the U.S. Energy and Commerce Committee, the committee where about 60 % of its total members are lawyers. Table 4 shows that there are considerable attitudinal differences between lawyer and non-lawyer members of the Energy and Commerce Committee. Table 4 also reports a comparison of the views of lawyer members on the Energy and Commerce Committee with the lawyer members on the Judiciary Committee. No great differences between these two groups of lawyers are evident. Taken together, these tables strongly suggest that the differences between how lawyers and non-lawyer members view the courts are not due to the committee of membership.
Partisanship and ideology are two additional factors that could influence feelings toward the courts. There is fairly extreme ideological polarization (based on average ADA score, 1985-1988) along partisan lines in this sample. In other words, the vast majority of the Democrats on these three congressional committees are liberals, and almost all of the Republicans are conservatives. Thus, it is very difficult to separate partisan and ideological influences. Table 5 reveals some fairly clear partisan (and of course for this sample, ideological) differences on members' general views of the courts. Democrats have a much more positive view of the federal courts than do Republicans.
To further the analysis of lawyer/non-lawyer differences in their general attitudes, Table 5 also looks at the partisan differences in attitudes among members of Congress, controlling for lawyer or non-lawyer background. Among Democrats in Congress, lawyers are generally more positive in their feelings toward the federal courts than are Democratic non-lawyers. Among Republicans, however, the lawyer/ non-lawyer differences are much more stark. Republican non-lawyers have a generally negative view of the federal courts, while Republican lawyers are generally positive in their feelings. While partisan differences certainly exist, the lawyer/non-lawyer distinction is certainly important for understanding differences within the parties. Thus members' general positive or negative feelings about the courts appear to be affected by the legal background of the members. These differences remain when controlling for partisanship differences, ideological differences, or committee of membership.
Another way to look at lawyer/non-lawyer differences is to examine whether the members see the courts and court decisions as primarily politically motivated. Table 6 indicates that almost none of the lawyers in this congressional sample see the courts as being primarily motivated by political considerations. Almost one-third of the non-lawyers, however, see federal court decisions as being politically motivated. Again, these differences are likely due to the legal training of lawyers and their familiarity with the decisionmaking processes of courts. Law schools teach that the courts are driven by legal considerations, and not primarily by politics. As one key committee staffer told me, "Lawyers understand court decisions better than non-lawyer members of Congress. The non-lawyers tend to read the decisions for all they're worth. But lawyers take a more balanced and realistic view of court decisions."
Again, it is useful to explore other factors that could cause this difference. Table 7 indicates that committee of membership has almost no effect on whether representatives see the courts as primarily motivated by politics. Table 8 reveals some partisan differences on this question. Almost no Democrats see the courts as political in nature, but about a third of Republicans believe the courts are politically motivated. However, as Table 8 also indicates, when controlling for legal background, clear differences within the parties appear. Democratic non-lawyers are somewhat more likely than their lawyer colleagues in the party to view the courts politically. But among Republicans, the lawyer/non-lawyer differences are quite clear. Republican non-lawyers are about evenly split on the question, while very few Republican lawyers see the courts as primarily motivated by political concerns. Thus the lawyer/non-lawyer distinction remains important for understanding congressional feelings about the federal courts.
Moving from general attitudes toward the courts, this study also reveals that lawyer-legislators pay more attention to the courts and are much more familiar with legislative options in reacting to court decisions than are their non-lawyer colleagues. Another clear difference between lawyer members of Congress and the non-lawyer members concerns their understanding of differences in congressional reactions to court decisions based on whether a particular court case was decided on constitutional grounds or on statutory interpretation grounds. Because congressional options are so different in the two situations, this distinction is extremely important (see Wasby 1988: 299-313; Baum .1989: 223-25). As Table 9 indicates, almost all of the lawyers in the congressional sample spontaneously differentiated between congressional reactions to statutory interpretation court decisions and court cases decided on constitutional grounds. Very few of the non-lawyers mentioned this important distinction without prompting. Because of the critical nature of this distinction, it is quite surprising that so few non-lawyers mentioned this important difference in congressional options. Again, legal training and background appear to have subtle but important effects upon the legislative process and upon the members' attitudes toward the courts.
In addition to differences in their attention and attitudes towards the courts, are there differences between lawyers and non-lawyer legislators in how they react to court decisions which they perceive as incorrect or unfavorable? This study finds some clear differences in this area.
Another clear indicator of general attitudes toward the courts is the willingness of legislators to prevent the courts from hearing certain types of highly controversial cases. In the jargon, this action is usually referred to as "stripping the court of jurisdiction over certain cases," or more simply just as "court stripping." For example, until recent court decisions on abortion have been more to their liking, many people in the pro-life movement wanted to strip the courts of jurisdiction over abortion cases. There is some current sentiment to strip the courts of jurisdiction over some environmental questions. While the vast majority of the members of Congress in this sample opposed such extreme congressional measures, Table 10 indicates that lawyers are much less likely to support court stripping than are non-lawyer members. Again, legal training may affect legislative attitudes and actions. Law schools proclaim the necessity of having a legal forum to settle disputes and to decide the constitutionality of various legislative actions. Stripping the courts of jurisdiction over certain controversial issues could prevent the courts from serving the needs of justice for society, according to the teachings of most law school courses. Seeing court stripping proposals as direct attacks upon the institutional integrity of the courts, it is not surprising that the vast majority of lawyer members would not support such actions. As one U.S. House Judiciary Committee member noted, "Lawyers are different from other members. They have an unusual respect for laws. Lawyers like clean and neat solutions; they don't like ambiguity." Stripping the courts of jurisdiction is anything but a clean, neat, and unambiguous solution to any perceived policy problem.
As Table 11 indicates, lawyer members of Congress are more likely to see congressional reactions to court decisions as unusual, rather than a part of their day-to-day routine. And as Table 12 indicates, lawyer members are also more likely to see congressional reactions to court decisions as happening much more slowly than congressional reactions to agency decisions. Non-lawyer members of Congress did not distinguish between the speed of congressional reactions to court decisions versus the speed of reactions to agency decisions. Thus the lawyer members of Congress see legislative reaction to the courts as out of the norm, while non-lawyers members see congressional reactions to court decisions as part of the normal day-to-day political activities of a legislator.
When exploring the interactions between courts and legislatures, it is essential to understand the general approaches and attitudes of legislators toward the courts, because these attitudes help to shape the routine, standardized, and informal patterns of interaction between the two institutions. The conventional wisdom has been that there are no differences between lawyers and non-lawyer legislators. This study presents strong evidence that the conventional wisdom is wrong, and that the attitudes and behavior of lawyer and non-lawyer legislators can be quite different, especially when dealing with the courts.
There are some clear differences between lawyer and non-lawyer members of Congress in their general attitudes about the federal courts in this country. These differences between lawyers and non-lawyers remain after controlling for committee of membership, party, and ideology. Lawyers have a generally more positive feeling about the courts, they are much less likely to feel that the courts are primarily motivated by political factors, they are much less willing to strip the courts of jurisdiction over controversial issues, and they see congressional reaction to the courts as non-routine. Lawyers are also better able to articulate congressional options on the rare occasions when Congress does react to federal court decisions.
Therefore, the question again arises, does the preponderance of lawyers in Congress make any difference? Certainly when exploring how Congress interacts with the courts, the fact that so many members of Congress are lawyers seems to protect the courts from congressional attacks on the courts as an institution. Scholars such as Murphy (1962), Pritchett (1961), and Schubert (1960) have all claimed that the federal courts were protected from attacks by Congress because of the prestige of the courts and because of the special role played by the courts in our system of government. These arguments seem nicely to capture how the lawyers in Congress view the courts. Thus this study provides further evidence that the legal training and professional socialization of lawyer-legislators makes Congress as a body less likely to overturn court decisions without careful examination and deliberation. As lawyers, representatives with law degrees seem much more likely to treat the courts as an institution whose decisions are based more on law and precedent than on pure political considerations. Thus lawyer members are especially unwilling to strip the courts of jurisdiction over controversial issues. The lawyers may disagree with specific court decisions, but they seem quite unwilling to prevent the courts from carrying out their functions in our system of government. Therefore in order to understand fully court-Congress interactions, we must understand how the legal training of so many of its members affects how Congress as an institution reacts to the courts as an institution.
When Congress does act to modify or to overturn a federal court decision, the lawyers in Congress will assure that Congress does not act with undue haste and that the proper procedures are always followed. It may also be that the predominance of lawyers in Congress forces a certain preoccupation with procedures and processes upon the institution. Because of their legal training and professional socialization, lawyer-politicians seem much more concerned about following proper procedures, be it in committee or on the floor of the House. One might also speculate that committees dominated by lawyer members are more formal and procedurally oriented in their decisionmaking processes than are committees dominated by non-lawyer members. Thus Congress as a body seems to reflect the procedural preoccupation and preferences of its lawyer majority. Because lawyer members seem extremely hesitant to make rash decisions concerning decisions from the courts, the lawyers in Congress feel that congressional reactions to court decisions should be much slower than reactions to agency decisions, which are perceived to be much more politically motivated. Henschen (1983,1985) has found that congressional reactions to federal court decisions are infrequent and unusual. Thus the lawyers' attitudes that the courts must be treated as a special institution combined with the lawyers' procedural preferences produces a Congress that rarely attacks the courts as an institution, and overturns federal court decisions only after careful deliberation.
Thus as one Massachusetts state representative said in an interview with this author, "The difference between lawyer and non-lawyer legislators is very real, but very abstract and very complex." Therefore, when discussing the effects of professional backgrounds on the attitudes and behavior of legislators, Philip Duncan (1991: 87) is probably right when he reminds us that the behavior of many members is most affected by their prior experiences in the working world before they were elected. Roger Davidson and Nelson Polsby were also both right when they said that social scientists have probably missed some of the very important effects that legislators' legal training has on the legislative process. And Larson (1977) is probably right in stating that one can never really disbar a lawyer. Further research is needed on the subtle but important differences between lawyer and non-lawyer politicians. But it seems almost impossible to separate the legally trained professional lawyer from the rest of the individual, even after that individual has been elected to public office.
TABLE 1
Lawyer Members of the U.S. Congress, Selected Years
1975 1981 1989
% % %
U.S. Senate 67 59 63
U.S. House 51 46 42
Total 54 47 46
Source: Data from Ornstein, Mann, and Malbin
1990: 20-21, 26-27.
TABLE 2
General Feelings of Members of Congress toward the
Federal Courts, Lawyers and Non-Lawyers
Positive Neutral Negative
% % %
All Lawyers (N = 35) 71 23 6
All Non-Lawyers (N = 26) 50 23 27
gamma = .46, tau-b = .25
TABLE 3
General Feelings of Members of Congress towards the
Federal Courts, by Committee
Positive Neutral Negative
% % %
Judiciary Committee (N = 20) 70 25 5
Energy & Commerce Committee (N = 23) 56 22 22
Interior Committee (N = 24) 63 25 12
gamma = -.11, tau-b = -.07
TABLE 4
General Feelings of Members of Congress towards
the Federal Courts, by Committee
Positive Neutral Negative
% % %
Energy & Commerce Lawyers (N = 15) 80 7 13
Energy & Commerce Non-Lawyers (N = 8) 13 50 37
gamma = .78, tau-b = .56
Energy & Commerce Lawyers (N = 15) 80 7 13
Judiciary Lawyers (N = 20) 70 25 5
gamma = .17, tu-b = .08
TABLE 5
General Feelings of Members of Congress towards the
Federal Courts, by Party and Legal Training
Positive Neutral Negative
% % %
All Democrats (N = 40) 78 15 7
All Republicans (N = 21 ) 33 38 29
gamma = .69, tau-b = .42
Democratic Lawyers (N = 25) 88 4 8
Democratic Non-Lawyers (N = 14) 50 43 7
gamma = .65, tau-b = .37
GOP Lawyers (N = 10) 60 40 0
GOP Non-Lawyers (N = 12) 17 33 50
gamma = .83, tau-b = .55
TABLE 6
Members of Congress and Their Views on Whether
the Federal Courts Are Politically Motivated
in Their Judicial Decisions,
Lawyers and Non-Lawyers
Yes No
% %
All Lawyers (N = 36) 6 94
All Non-Lawyers (N = 25) 32 68
gamma = -.78, tau-b = -.35
TABLE 7
Members of Congress and Their Views on Whether
the Federal Courts Are Politically Motivated/n
Their Judicial Dec/s/ohs, by Committee
Yes No
% %
Judiciary Committee (N = 20) 59 5
Energy & Commerce Committee (N = 22) 18 82
Interior Committee (N = 24) 21 79
gamma = -.09, tau-b = -.04
TABLE 8
Members of Congress and Their Views on Whether
the Federal Courts Are Politically Motivated/n
Their Judicial Decisions,
by Party and Legal Training
Yes No
% %
All Democrats (N = 40) 10 90
All Republicans (N = 21 ) 29 71
gamma = -.57, tau-b = -.24
Democratic Lawyers (N = 26) 4 96
Democratic Non-Lawyers (N = 14) 21 79
gamma = -.74, tau-b = -.28
GOP Lawyers (N = 10) 10 90
GOP Non-Lawyers (N = 11 ) 45 55
gamma = -.77, tau-b = -.39
TABLE 9
Whether Members of Congress Spontaneously Distinguished
between Federal Court Cases Based on Constitutional or
Statutory interpretation Grounds
Yes No
% %
All Lawyers (N = 35) 80 20
All Non-Lawyers (N = 25) 13 87
gamma = .93, tau-b = .66
TABLE 10
Members of Congress Willingness to
Strip Federal Courts of Jurisdiction
Yes No
% %
All Lawyers (N = 34) 9 91
All Non-Lawyers (N = 23) 39 61
gamma = -.74, tau-b = -.37
TABLE 11
Whether Members of Congress See Congressional Reactions
to Federal Court Dec/s/ohs as Routine or Unusual
Routine Unusual
% %
All Lawyers (N = 36) 14 86
All Non-Lawyers (N = 25) 40 60
gamma = -.61, tau-b = -.30
TABLE 12
Whether Members of Congress See Congressional Reaction
to Court and Agency Dec/s/ohs as Being Faster
Courts Same Agencies
% % %
All Lawyers (N = 38) 3 34 63
All Non-Lawyers (N = 25) 0 80 20
gamma = -.68, tau-b = -.40
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Semi-Structured Interview Schedule for Congressional Interviews
- If an administrative agency issues a decision with which you disagree, how would you respond?
- If a federal court issued a decision with which you disagree, how would you respond?
- How do you think the (Energy & Commerce, Judiciary, or Interior) Committee would respond to an unfavorable administrative decision?
- How do you think the (Energy & Commerce, Judiciary, or Interior) Committee would respond to an unfavorable federal court decision?
- Are there particular administrative decisions or court decisions that have been brought to your attention recently? How do you plan to react to these decisions?
- If the federal courts consistently issued decisions in a particular area that you thought were wrongly decided, would you support stripping the courts of jurisdiction over that type of case? Why or why not?
- If federal agencies consistently issued decisions that you thought were wrong, would you support stripping the agency of discretion in that area? Why or why not?
- If administrative agencies and Congress disagree over certain policies, who should have the bottom line, final say on that issue? Why?
- If courts and Congress disagree over certain policies, who should have the bottom line, final say on the issue? Why?
- How does the (Energy & Commerce, Judiciary, or Interior) Committee differ from other committees on which you serve? How does the committee differ in its decision-making processes?
- Any comments on specific court cases or specific administrative decisions?
- Any additional comments?
APPENDIX B
Interview Sampling Grid for Congressional Interviews
PART I
Total Members
Number Interviewed
Total Sample 116 46
Judiciary Committee 35 14
Energy & Commerce 43 14
Interior Committee 38 19
Judiciary Committee
Liberal Democratic Lawyers 15 7
Moderate Democratic Lawyers 6 3
PART II
Staff Combined
Response Responses as
Tabulated % of Total
Total Sample 25 61%
Judiciary Committee 8 63%
Energy & Commerce 10 56%
Interior Committee 7 68%
Judiciary Committee
Liberal Democratic Lawyers 3 67%
Moderate Democratic Lawyers 2 83%
PART III
Total Members
Number Interviewed
Conservative Democratic Lawyers -- --
Liberal Democratic Non-Lawyers -- --
Moderate Democratic Non-Lawyers -- --
Conservative Democratic Non-Lawyers -- --
Liberal GOP Lawyers -- --
Moderate GOP Lawyers 1 --
Conservative GOP Lawyers 12 4
Liberal GOP Non-Lawyers -- --
Moderate GOP Non-Lawyers -- --
Conservative GOP Non-Lawyers 1 --
Energy and Commerce Committee
Liberal Democratic Lawyers 11 5
Moderate Democratic Lawyers 7 2
Conservative Democratic Lawyers 1 1
Liberal Democratic Non-Lawyers 4 1
Moderate Democratic Non-Lawyers 3 --
Conservative Democratic Non-Lawyers -- --
Liberal GOP Lawyers -- --
Moderate GOP Lawyers 1 --
Conservative GOP Lawyers 6 1
Liberal GOP Non-Lawyers -- --
Moderate GOP Non-Lawyers 1 --
Conservative GOP Non-Lawyers 9 4
Interior Committee
Liberal Democratic Lawyers 4 3
Moderate Democratic Lawyers 4 2
Conservative Democratic Lawyers -- --
Liberal Democratic Non-Lawyers 9 7
Moderate Democratic Non-Lawyers 5 3
Conservative Democratic Non-Lawyers 1 --
Liberal GOP Lawyers -- --
Moderate GOP Lawyers 1 --
Conservative GOP Lawyers 3 1
Liberal GOP Non-Lawyers -- --
Moderate GOP Non-Lawyers -- --
Conservative GOP Non-Lawyers 11 3
PART IV
Staff Combined
Response Responses as
Tabulated % of Total
Conservative Democratic Lawyers -- --
Liberal Democratic Non-Lawyers -- --
Moderate Democratic Non-Lawyers -- --
Conservative Democratic Non-Lawyers -- --
Liberal GOP Lawyers -- --
Moderate GOP Lawyers -- 0%
Conservative GOP Lawyers 2 50%
Liberal GOP Non-Lawyers -- --
Moderate GOP Non-Lawyers -- --
Conservative GOP Non-Lawyers 1 100%
Energy and Commerce Committee
Liberal Democratic Lawyers 3 73%
Moderate Democratic Lawyers 1 43%
Conservative Democratic Lawyers -- 100%
Liberal Democratic Non-Lawyers 1 50%
Moderate Democratic Non-Lawyers 1 33%
Conservative Democratic Non-Lawyers -- --
Liberal GOP Lawyers -- --
Moderate GOP Lawyers 1 100%
Conservative GOP Lawyers 2 50%
Liberal GOP Non-Lawyers -- --
Moderate GOP Non-Lawyers -- 0%
Conservative GOP Non-Lawyers 1 56%
Interior Committee
Liberal Democratic Lawyers -- 75%
Moderate Democratic Lawyers 1 75%
Conservative Democratic Lawyers -- --
Liberal Democratic Non-Lawyers 1 89%
Moderate Democratic Non-Lawyers 1 80%
Conservative Democratic Non-Lawyers 1 100%
Liberal GOP Lawyers
Moderate GOP Lawyers -- 0%
Conservative GOP Lawyers -- 33%
Liberal GOP Non-Lawyers -- --
Moderate GOP Non-Lawyers -- --
Conservative GOP Non-Lawyers 3 55%
All of this information was obtained from Politics in America 1990
(Duncan 1989). For the ideological categories, I divided the
members of Congress into three groups based on the average of their
average ADA (Americans for Democratic Action) scores for the years
1985-1988. Conservatives were defined as those woth average ADA
scores less than or equal to 30. Moderates were defined as those
with average scores of 31-69. Liberals were defined as those wit
average scores greater than or equal to 70.
~~~~~~~~
MARK C. MILLER: Clark University