Lawyers, beware lawyers

EXAMINE the latest budget stand-off to shame Washington and embarrass America, and lawyers are everywhere. An ambitious Republican, Senator Ted Cruz (once solicitor-general of Texas) played a large role in triggering the crisis. Other lawyer-politicians led efforts to pull the country back from the brink. Early outlines of a deal came from a dozen independent-minded or swing-state Republican and Democratic senators, nine of them lawyers by training. Further heavy lifting fell to the Senate’s Democratic majority leader, Harry Reid, and his Republican counterpart Mitch McConnell, both former lawyers (though only Mr Reid can claim the distinction of being targeted with a car bomb, shortly after declining bribes from the wrong sort of Nevada businessman). President Barack Obama is a lawyer, as is his treasury secretary, Jack Lew. Though fewer than one in 200 Americans has a law licence, the profession can lay claim to a third of the current House of Representatives and to more than half the seats in the Senate.

For comparison, in both Britain’s House of Commons and its Canadian counterpart just one in seven members is a lawyer, and one in 15 deputies in the French Assemblée Nationale. A Lexington’s Law suggests itself: just as Britain should limit its cabinet to two old-Etonians, Congress should try to rub along with no more than two dozen Harvard or Yale Law graduates at a time.

The imbalance is not new: more than half the men who signed the Declaration of Independence had a legal training. But a legalistic approach to politics is no longer serving America well. Today’s budget wars are deeply political. They reflect unresolved debates that divide the country: over equality and redistribution, risk-taking and safety nets, and the role of government itself. Seen through foreign eyes, the current dysfunction within Congress is at once distinctively American and recognisable as a political crisis within a grand coalition: in essence the Tea Party is walking out on other members of the Republican alliance, whom you might call the Business Party, the National Security Party and the Christian Values Party. But too often, these budget battles are being fought with legal arguments about precedent and legitimacy, advanced by politicians trained in the adversarial, prove-me-wrong traditions of American law.

Even Republicans who loathe Mr Cruz defend the constitutional principles underpinning his scheming. They call it both lawful and proper for Congress to close bits of the government or to thwart federal borrowing in pursuit of broader policy goals. They accuse Mr Obama of scheming to opt out of spending curbs that currently crimp the budget, though these are “the law of the land”. For their part Democrats call Obamacare the settled law of the land and accuse Republicans of seeking to set precedents on budget-making that, if allowed to stand, would make America ungovernable. Congress has a duty to pay the spending bills that it has passed, thunder Mr Lew and other officials.

“Lawyers as Leaders”, a new book by Deborah Rhode, a Stanford law professor, ponders the extraordinary power wielded by American lawyers. As noted by Alexis de Tocqueville nearly two centuries ago, the clout of America’s legal establishment is boosted by a national habit of asking judges to decide knotty political questions. In modern times courts have triggered giant shifts in fields from civil rights to abortion laws or the regulation of greenhouse gases, often in the absence of a national democratic consensus. These are often, rightly, points of pride. Yet judge-made laws have often proved fragile, and vulnerable to challenge.

There are parallels in public attitudes to Congress and the law. In polls, fewer than one in five Americans say lawyers make a big contribution to society or display high ethical standards—putting the profession even lower than such guttersnipes as journalists. Such disdain is trumped only by the sempiternal public contempt for Congress and car salesmen. One study found that three-quarters of Americans think lawyers are “more interested in winning than in seeing that justice is served”. On the other hand, individual lawyers are rather popular. Most consumers who hired a lawyer were “very satisfied”. As Ms Rhode drily notes, people appear to want an advocate who serves their interests, but deplore the professional norms that result when everyone else wants the same.

Sack ’em all

For many decades voters seemed similarly conflicted about Congress, hating the institution while rather liking their own local member of it. This similarity was no coincidence. Washington was a town in which lawyer-lobbyists whispered in the ears of lawyer-legislators, generating thick stacks of tax codes and business regulations that were opaque to outsiders, lucrative for a few, and sufficiently larded with federal subsidies and pork to soothe disgruntled voters. A public backlash hit the politico-legal world after the Watergate scandal, in which almost every major participant was a lawyer, starting with President Richard Nixon and two attorneys-general. Today another backlash looms. Congress can no longer buy as much love with new highways, bridges or subsidies: money is tight, and social-media watchdogs stand ready to denounce any whiff of pork. An October 10th poll found a record 60% of Americans willing to sack and replace every member of Congress, including their own.

Into that combustible environment come politicians eager to portray their opponents as flouting legal norms. The right bears a heavy share of blame. In lots of other countries, protesters call for unpopular leaders to resign. The banners waved by American conservatives call for Mr Obama to be impeached. Even mainstream Republicans in Congress are quick to call the president a law-breaker. But politicians of both parties are too eager to denounce the other side’s conduct as not just wrong, but as illegitimate. What room does that leave for compromise?

^{Economist.com/blogs/lexington}