I’ve been listening to the Senate hearings to confirm John Roberts as Chief Justice of the United States on and off for the last several days. I can’t offer an informed opinion on Roberts. For that I suggest you turn to SCOTUSBlog (they’re liveblogging the proceedings), Ann Althouse, or Balkinization, preferably all three. That should give you a nice variety.
I do, however, have an opinion on the proceedings themselves. I don’t think that democracy is supposed to be an adversarial process. Sure, there are competing interests. But must there be winners and losers? It seems to me that our political process has become increasingly adversarial throughout my lifetime and I’d like to offer a speculation on why that might be so.
Here’s what Alexander Hamilton had to say about the elected representatives of the people in Federalist 36:
WE HAVE seen that the result of the observations, to which the foregoing number has been principally devoted, is, that from the natural operation of the different interests and views of the various classes of the community, whether the representation of the people be more or less numerous, it will consist almost entirely of proprietors of land, of merchants, and of members of the learned professions, who will truly represent all those different interests and views.
Please note the order. By members of the learned professions, of course, Hamilton certainly meant lawyers, physicians, teachers, and ordained ministers. Here’s how the Senate is constituted now:
|Assembly line worker||1|
Admittedly some of my assignments are judgment calls. I’ve placed anyone trained as a lawyer in the Lawyer category whether they had extensive practice or not. Many of the lawyers are actually lifelong politicians who’ve never done anything else. Note that more than 2/3’s of the Senators are lawyers or people who’ve never worked in anything other than government.
Of course, our economy has changed enormously since Hamilton’s time. Agriculture doesn’t have anything like the importance it did then when more than 90% of all of the people made their livelihood through farming. As the philosopher Mortimer Adler observed, agriculture is intrinsically cooperative. The farmer cooperates with nature.
The practice of law, on the other hand, under our system is adversarial. Lawyers are by inclination and training predisposed to approaching what they do in an adversarial light.
Now I know that many lawyers believe that a law degree qualifies you for anything. My dad certainly did—he was a lawyer and the smartest man I’ve ever known. Not being a lawyer I, to the contrary, believe that a law degree (and passing the bar and a rough-and-ready apprenticeship of a year or two during which you actually learn what lawyers do) qualifies you to practice law. Maybe to teach law.
It looks to me like we need a lot fewer lawyers in the Senate.
Oh, and why didn’t anyone tell me that Lincoln Chafee had worked for years as a blacksmith?
If that don’t beat all. While listening to hearings yesterday, a passing remark by a senator that a numbre of his colleagues are lawyers caused me to wonder what the makeup of Senate is by profession, and how many lawyers are represented. Thank you, Dave, for putting up that chart!!
Excellent post once again. You’re right. An overrepresentation of lawyers causes increased adversariality. That however is not the only problem as lawyers bring with them other kinds of professional bias that may be even more damaging. These would include:
Paralysis by Analysis:
Lawyers tend to be small picture, detail experts trained to look for anamolies in operational process vs. formal rules. They are quick to suggest all the reasons why something cannot be done, sometimes based upon a *possible* interpretation that someone *might* make rather than something proven and known. The more lawyers you have giving advice the narrower the parameters of change or movement.
Process over Substance:
Lawyers tend to try to import the culture of law into any other domains they might be functioning in at the time. All life is not a courtroom proceeding nor does every system need to function according to Federal Due Process legal standards. Too often the process becomes the overriding concern rather than the result ( or even if there is an objective in the first place).
Preferring Complexity and Rigidity to Simplicity and Discretion:
Being concerned with liability issues, lawyers prefer to regulate all potentialities beforehand. When this becomes the focus of legislation you end up with vitally needed disaster workers en route to New Orleans being diverted to Sexual harrassment seminars and surgeons being handed mops while people are dying for lack of medical care because the regs do not permit the suspension of normal procedural requirements during emergencies and punish those bureaucrats who try to look the other way.
Systems that add unneeded complexity, complexity unelated to productive purposes, are inefficient systems with a greater likelihood of malfunction. A few years back, an excellent book _The Death of Common Sense_, laid out these “lawyer problem” issues in detail.
Mark, you wrote:
That’s not just true of lawyers. My experience is that everyone tends to do what they’ve been trained to do (and in the way in which they’ve been trained to do it). Surgeons look for surgical solutions to every health problem.
And people who’ve been highly successful—anyone who’s been elected to the U. S. Senate can reasonably make that claim—wants to maintain that success by continuing to do whatever they’ve been successful at.
But if 60% lawyers represents anything other than the American Bar Association, God help us.
“That’s not just true of lawyers. My experience is that everyone tends to do what they’ve been trained to do (and in the way in which they’ve been trained to do it). Surgeons look for surgical solutions to every health problem.”
Conceded. Human nature is, if you are a hammer then all things begin to ressemble nails. Though as you pointed out in your post, lawyers tend to be prone to delusions of omnicompetence and while they are generally logical, I wouldn’t call them a big-picture thinking profession.
Abraham Maslow’s comment (“When the only tool you have is a hammer every problem begins to look like a nail.”) is one of my favorites.