Prof. Ann Southworth Guest-Blogging This Week:
I'm delighted to report that Ann Southworth will be guest-blogging this week about her new book, Lawyers of the Right: Professionalizing the Conservative Coalition. Prof. Southworth -- now of the new UC Irvine School of Law, but for 15 years before that a colleague of Jonathan Adler's at Case Western -- is a leading scholar of public interest lawyering, and her new work is to my knowledge the first scholarly study of conservative and libertarian cause lawyering.
I've long known and much admired many of the people in this movement, and I'm very glad to see that scholars are taking them seriously, and thinking about them seriously. I'm much looking forward to seeing Prof. Southworth's posts, and I'm sure many of you will find them equally interesting.
Lawyers of the Right:
I am grateful to Eugene Volokh for this opportunity to post some findings from my book, Lawyers of the Right: Professionalizing the Conservative Coalition (University of Chicago Press 2008) and to seek your reactions.
The book is an account of lawyers’ roles in the conservative movement and class and cultural conflict among them. It analyzes these lawyers’ characteristics, values, professional identities, and strategies, and the extent to which they, and the organizations they serve, operate as a coordinated whole.
The lawyers examined in my book serve several strands of the conservative alliance that has coalesced behind the Republican Party during the past few decades. Most prominent among those elements are social conservatives, libertarians, and business interests – constituencies that pursue competing and sometimes contradictory goals. Despite their differences, these groups formed a successful coalition for many years, although the future of that alliance now seems uncertain.
One might expect lawyers to influence the likelihood of cooperation. In fact, lawyers may be among a relatively small set of occupational groups -- along with politicians, public intellectuals, political patrons, and perhaps religious leaders and journalists --who are well positioned to play such an integrative role. Lawyers’ common characteristics and interests might draw them together and link the constituencies they serve. Alternatively, they could be sharply divided along the lines of the interests they represent and thus contribute little to coordinating the alliance. One of the book's purposes is to assess the likelihood of those competing possibilities.
The book draws primarily from semi-structured interviews in 2001 and 2002 with seventy-two lawyers for conservative and libertarian nonprofit organizations. The interviews grew out of a project that I pursued jointly with John P. Heinz of the American Bar Foundation and Northwestern University and Anthony Paik of the University of Iowa. To define the set of lawyers to study, we drew a sample of conservative and libertarian nongovernmental organizations, using several complementary methods. I requested interviews with ninety-eight prominent lawyers for these organizations and interviewed seventy-two of them.
The “interviewees” included many of the best-known lawyers of the conservative movement, representing all of the major constituencies. They worked for conservative religious groups, abortion opponents, libertarian organizations, groups devoted primarily to business interests, affirmative action opponents, "order maintenance" groups (i.e., organizations concerned with crime and/or preserving the established social and cultural order), and mediator organizations -- which seek to appeal to all elements of the conservative alliance and to promote communication and cooperation among them. The lawyers served these organizations in various roles -- as organizers, officers, litigators, scholars, and consultants. The largest number were in Washington, D.C., but others worked in the South, Midwest and West.
There are striking differences among the lawyers who serve the primary constituencies of the conservative coalition. They work on different issues for different clients in different practice settings, and they are divided by social characteristics, educational background, values, geography, and professional identity. Religious conservatives generally are from rural and less economically privileged backgrounds, and many of them openly invoke God as a source of inspiration and guidance. Lawyers for libertarian groups, like their social conservative counterparts, tend to come from modest backgrounds and appear to be personally invested in the causes they serve, but they are less religious and more enamored with markets and personal liberty. Most of the business representatives come from economically secure backgrounds and describe their advocacy for business-oriented causes as work rather than activism. Lawyers for mediator groups differ from advocates for the other constituencies in their especially elite educational backgrounds, prominence, ties to the legal establishment, and commitment to identifying common ground.
If lawyers for the core constituencies come from different social backgrounds and hold different political commitments and professional identities, what social forces and institutions, if any, bring them together? The book considers experiences, interests, and organizations that may help forge common ground among lawyers who are divided by ideology, geography, and class. It focuses particularly on lawyers’ shared interest in promoting strategies in which they play leading roles and on the function of several important “mediator” organizations -- the Federalist Society and the Heritage Foundation.
Divided Constituencies and Their Lawyers:
I devote two chapters of the book (3 & 4) to exploring differences among lawyers for the different constituencies. One chapter focuses on social background and values, and the other considers professional identity. It is difficult to summarize those chapters; they draw heavily from qualitative interview data to develop group portraits. But a few additional details might help answer some of the excellent comments I’ve received thus far – without, I hope, dampening readers’ willingness to delve into the book.
The suggestion that the lawyers I interviewed must work in Washington, D.C. is (roughly) half true. Thirty-four of the 72 interviewed lawyers worked in D.C. and D.C. suburbs, while 38 worked elsewhere. The geographic distribution of lawyers varied by constituency. Especially striking was that very few of the lawyers for social conservative organizations worked in D.C. Instead, they were heavily concentrated in the Southeast, Midwest and West, with many of them working outside of major metropolitan areas. Advocates for libertarian groups were mostly in D.C. and the West. All but a few of the lawyers for mediator groups and business organizations worked in major metropolitan areas — most of them in D.C.
There were also notable differences in the credentials held by these lawyers. The religious conservatives and abortion opponents were much more likely than lawyers for other constituencies to have attended religiously affiliated schools and less likely to have gone to schools ranked in the top twenty in the 2000U.S. News& World Report rankings. At the other end of the spectrum were lawyers for the mediator organizations, almost all of whom had attended top 20 law schools — mostly very elite ones. The educational backgrounds of the lawyers for libertarian and business organizations were more varied.
The book also includes an analysis of foundation funding for the organizations served by the interviewed lawyers. I found that the organizations drew systematically from different sources of foundation funding, suggesting that the institutional patrons of conservative advocacy organizations are divided by constituency, just as the lawyers are. For example, there was no overlap among the top five foundation supporters of religious and pro-life groups on the one hand and business and libertarian groups on the other. Differences in the foundations’ causes, in turn, reflected pronounced differences in the commitments of the founders and/or current administrators of the foundations, as reflected in the foundations’ mission statements. By far the largest amount of foundation funding went to the mediator organizations, and the patrons of these groups were ideologically mixed.
Another chapter of the book (5) identifies factors that might provide bases for understanding and perhaps cooperation among lawyers for the different constituencies: generational effects, shared disapproval of liberals, overlapping policy agendas, a common interest in remaking the judiciary, the Republican Party, shared professional status, and perceived disadvantage in the legal establishment. But I conclude that none of these elements of common ground is sufficient, independently or in combination, to overcome the differences in ideology and values documented in previous chapters.
The especially elite and prominent lawyers working for mediator organizations, and the disproportionate amount of foundation money invested in those groups, suggest that they deserve a close look as possible sources of glue among lawyers for the different constituencies. I devote a whole chapter to these organizations, and I will focus on them in my next post.
P.S. The “order maintenance” label refers to several organizations that did not fall into the other categories and that seemed to share a focus on social order – on issues such as criminal law, immigration, and promoting the use of the English language. I interviewed just four lawyers who worked for organizations in this category. My previous description of this group prompted a comment asking whether I was suggesting that these advocates were major players in the culture wars. They clearly were not. I believe that the book is clear on this point, but my first post was not.
Both the Federalist Society and the Heritage Foundation attempt to appeal to all strands of the conservative alliance and to unify and mobilize lawyers for conservative and libertarian causes. Heritage pushes lawyers (and other advocates) to find ways to contribute to the mutual success of the organizations they serve. The Federalist Society does not directly advocate cooperation on policy objectives, but it indirectly contributes toward that goal by engaging conservatives and libertarians in conversation and debate.
Do these organizations help to integrate the conservative coalition? If so, how effective are they?
The lawyers I interviewed for my book offered mixed assessments. They suggested that these organizations reach more deeply into some strands of the coalition than others. A religious conservative reported that Heritage meetings draw fewer social conservatives than libertarians. More than half of the interviewed lawyers said that they were active in the Federalist Society, but lawyers associated with libertarian and mediator organizations were much more likely than social conservatives or business advocates to participate.
On the other hand, an analysis of the communication network of the interviewed lawyers lends support to the idea that those organizations promote communication across constituencies. The network was divided by constituency, with lawyers in distinct parts of the network communicating very little with each other. In the core of the network, however, were seven lawyers who communicated with many other lawyers. Their central position in the network suggested they might help to link divided constituencies. All lawyers in the core were active participants in the Federalist Society. Although I did not have complete data about participation in Heritage Foundation meetings, four lawyers in the core indicated that they regularly participated in those meetings as well.
Is it true, as one lawyer told me, that the Heritage Foundation and the Federalist Society serve as the “crossroads of the conservative movement”? To what extent do they manage to promote understanding and cooperation within the coalition?
The sample, and more about mediator groups:
Several of you have asked me to say more about the method used to generate the sample of lawyers interviewed for my book, "Lawyers of the Right." Jack Heinz, Anthony Paik, and I relied primarily on the “issue-events” method to identify the organizations and lawyers for our study – that is, we selected seventeen legislative controversies involving issues that were important to different conservative constituencies in the late 1990s. The events included proposals regarding abortion, affirmative action, school prayer, tort reform, environmental policy, gay rights, civil rights, flag burning, funding for the National Endowment for the Arts, the minimum wage, compulsory union dues, property rights, gun control, criminal procedure, funding for the Legal Services Corporation, and cultural assimilation for immigrants. We then searched on-line archives for articles about these legislative controversies in eighteen newspapers and magazines, and we identified all non-governmental, nonprofit organizations that appeared in these articles on the “conservative” side of the issues. This method produced the names of 81 organizations. We searched a variety of sources — including organization websites, board lists, litigation records, and a database of legislative testimony — to identify lawyers who worked for these organizations as officers, litigators, board members, lobbyists, and senior scholars.
To compensate for the issue-events method's possible bias against litigation and research groups, we supplemented the list with five additional organizations that were particularly active in those policy arenas, using to two directories of conservative organizations: The Conservative Directory published by RightGuide.com, and the Heritage Foundation's list of “U.S. Policy Organizations” (Wagner et al. 2000: 681-789).
I requested interviews with 98 lawyers for the 86 organizations, and I interviewed 72 of them. (The 26 lawyers I attempted to contact but did not interview included seven who did not respond and three who had moved to other jobs. Scheduling problems (theirs and mine) prevented me from interviewing 16 lawyers who appeared willing to meet with me.)
In my last post, I noted that, in my set of interviewed lawyers, advocates for libertarian and mediator organizations were much more likely than social conservatives or business advocates to be active in the Federalist Society. My sample size is small, of course, but the trends were very strong: 82 percent of the libertarian and affirmative action opponents were active in the Federalist Society, and all of the lawyers for mediator groups said that they participated. In contrast, just over one quarter of the advocates for social conservative organizations and the same percentage of advocates for business groups were active in the Federalist Society. Perhaps these skewed results reflect the prominence of the interviewed lawyers; in the larger population of advocates for conservative and libertarian causes, the various constituencies might be more evenly represented. But maybe my numbers really do reflect broader trends in the Federalist Society’s reach and membership. As I noted previously, many prominent social conservative advocates do not work in major metropolitan areas, which would make it difficult for them to be active in Federalist Society events. It may also be that those lawyers see less value in the meetings and debates. In the book, I speculate about other possible explanations as well, but I really don’t know the answer.
I have one (surely naïve) parting question for readers. Why aren’t there more (any?) truly bipartisan mediator organizations? If the Heritage Foundation, Federalist Society, and other mediator groups that I’ve mentioned in previous posts use various strategies (including indirect ones) to build bridges within the conservative coalition and mobilize support behind the GOP, where are the organizations that might help promote consensus across political lines on the most important public policy challenges of our time?