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The creation of the Department of Justice: professionalization without civil rights or civil service.

INTRODUCTION

I. GOVERNMENT LAWYERS AND PROSECUTION IN THE EARLY REPUBLIC

II. PROFESSIONALIZATION IN THE LATE 1860S AND 1870

III. DEPARTMENT OF JUSTICE ACT

     A. The DOJ Act's Beginnings and the Tenure of Office Act,
        1865-1869

     B. The Passage of the DOJ Act, 1870

     C. Why the "Father of the Civil Service" Failed to Install Civil
        Service in the DOJ

IV. A FALSE START

CONCLUSION

APPENDIX: ASSISTANT U.S. ATTORNEYS, 1871-1876


INTRODUCTION

The Department of Justice (DOJ) was created in 1870, after almost a century of disorganization and confusion among the federal government's lawyers. It has been treated like common sense that the DOJ was created to increase the federal government's power in the wake of the Civil War and to enforce civil rights during Reconstruction. (1) For example, one recent book located the DOJ's creation in the general trend of building the modern federal bureaucracy "[t]o [e]nlarge the [m]achinery of [g]overnment," (2) and a set of recent articles explained the DOJ as a Reconstruction project for the protection of ex-slaves' civil rights. (3) This Article contends that the act creating the DOJ, the Act to Establish the Department of Justice (DOJ Act), (4) had different purposes and opposite effects. It has been overlooked that the DOJ Act eliminated the primary tool of the federal government for keeping up with a surge in postwar litigation: outside counsel. From 1864 to 1869, the federal government had paid over $800,000 to such "outside counsel." (5) The DOJ Act essentially cut the equivalent of about sixty district judges or forty assistant attorneys general from the federal government--about one-third of the federal government's legal staff--and replaced them with only one new lawyer, the Solicitor General. (6)

The founding of the DOJ actually undermined Reconstruction, and it had more to do with "retrenchment" (budget cutting and fiscal conservatism) and anti-patronage reform. This Article's new interpretation contends that the DOJ's creation was actually the leading edge of another significant development in American legal history: the professionalization of American legal practice. Many legal historians have identified the 1870s as a major turning point toward the modern legal profession. (7) From the 1860s through the 1870s, a cadre of Republican reformers was working on a combination of the DOJ Act, civil service reform, bureaucratic independence, and the founding of modern bar associations. (8) One of the most significant developments of the antebellum era was the rise of party machines and political patronage, from President Jackson's and President Van Buren's Democrats in the 1820s, to the Whigs in the late 1830s, and eventually to the Republicans, as well. (9) As soon as the Civil War ended, a new reform movement emerged, focusing on professionalization and civil service (restructuring government employment by merit, competitive testing, and job security, rather than political patronage).

In the 1860s and 1870s, Republican lawyers led the reform effort to professionalize the bench and bar. It has been overlooked that the congressman who led the DOJ effort, Thomas Jenckes, was also known as the "Father of the Civil Service," (10) and that his allies led the bar association movement. A substantial part of this Article is based on Representative Jenckes's voluminous papers and letters, which are now housed at the Library of Congress. These professionalization efforts reflected a coherent agenda of (1) separating law from partisan politics; (2) establishing norms of expertise; (3) creating institutions for regulating legal practice; and (4) making these positions more exclusive. Reformers perceived that outside counsel positions were manipulated for patronage, a problem that infected other, nonlegal government offices. Moreover, the reformers perceived the legal profession as tarnished by too much democracy and low professional standards. Accordingly, they founded the bar association in order to "maintain the honor and dignity of the profession of law." (11) Like the new bar associations, the Department of Justice offered a leaner and cleaner organization of government lawyers, rather than a disorganization of government lawyers that had been bigger and meaner, in the sense of unregulated patronage. The DOJ was a different kind of state building: not growth in the size of a bureaucracy, but more managing, disciplining, and limiting the bureaucracy.

The DOJ's creation was also a first step in another major trend: the rise of bureaucratic autonomy and expertise. This Article is at least a beginning of an answer to a historical puzzle: the Department of Justice is structurally accountable to presidential power to direct and fire officials, and yet it has developed strong norms of professional independence, despite episodes of presidential intervention (e.g., Watergate and the Bush firings). The DOJ's creation reflects an early commitment to those norms of autonomy and expertise. In the debates over the DOJ Act, reformist Republicans argued that the system of spreading law officers throughout the various departments undermined their independence and undercut their power to restrain executive action. These lawyers had been handpicked by the department heads, so they were "yes-men" for the legal answers that the department heads wanted to hear. The opinions from these departmental law officers and from outside counsel were "designed to strengthen the resolution" of the department heads for their preferred course, to "sanction" their actions, even though "there was no authority in any law" for those actions. (12) In addition, congressmen described the "outside counsel" as "departmental favorites," hired by executive officers at their own discretion, and creating even deeper problems of sycophancy, cronyism, and lawlessness. (13)

The Attorney General's opinions would become more authoritative within the executive branch, to be "followed by all the officers of the Government until [they are] reversed by the decision of some competent court." (14) Executive officers--and even the President--would no longer be able to find legal "shelter" from the law officers for their questionable actions. (15) This perspective fit an earlier interpretation that the Attorney General was supposed to be "quasi judicial," more independent from executive and partisan politics, and more powerful in limiting the actions of executive officers. (16) The reformers' vision was to increase professional independence by increasing bureaucratic accountability to the Attorney General, not to the President. Instead of cementing presidential power over government lawyers and merging law and politics, (17) the DOJ Act was itself a structural reform aiming to protect professional independence and separate law from politics. (18)

The professionalization and civil service movements make more sense out of the DOJ's creation than the interpretations based on post-Civil War expansion of the federal government or Reconstruction enforcement of civil rights. Representative Jenckes and the other reformers paid little attention to Reconstruction or to black civil rights. The DOJ Act's drafters emphasized repeatedly that it would cut spending, increase efficiency, and create no new law positions except for the Solicitor General's office. (19) The DOJ Act then played a role in frustrating the Reconstruction effort. U.S. Attorneys in the South were fighting an uphill battle on civil rights in the early 1870s, because they were underfunded by Congress and had so few personnel to help with litigation. (20) The DOJ Act's restrictions prevented federal officials from hiring more prosecutors in the South. (21) The first two Attorneys General who ran the new Department of Justice complained that they had too few lawyers and too few resources to take on the KKK in the early 1870s. (22) Those years witnessed the retreat from Reconstruction.

My argument is not that Congress generally did not care about civil rights in this era, but rather, that the framers of the DOJ Act itself were indifferent to Reconstruction, and some were even hostile towards it. They were not focused on increasing federal power or on civil rights in the South, even as other congressmen worked on other legislation intended to protect civil rights. Congress, of course, is a "they," not an "it." (23) Congress was difficult to manage without any staff, especially after the passing of key Radical Republican leaders. (24)

This Article touches on the Republican reformers' parallel anti-patronage civil service goals from 1865 through 1871, because this context is important for this Article's positive argument about professionalization and retrenchment. The reformers' goals in enacting civil service reform mirror the goals of the DOJ Act: reducing the size of the bureaucracy by about a third, and yielding more exclusivity, efficiency, and expertise. (25) But the details of the civil service reform efforts will be part of a future article that will address two puzzles: Why is the United States unique among Western democracies in not addressing prosecutors with civil service reform? And if civil service reformers led the creation of the Department of Justice, why didn't they include civil service reforms as part of this professionalization project? Representative Jenckes, the "Father of the Civil Service," succeeded in passing a DOJ Act professionalizing government lawyers, but curiously, he did not push to include civil service reforms in the DOJ Act. (26) Representative Jenckes and the Republican Congress achieved many of their professionalization goals in their DOJ Act without relying on civil service provisions.

The organization of this Article is more thematic than chronological. Part I lays out the bizarre decentralized history of government lawyers and prosecution (both state and federal and public and private) in antebellum America. Part II provides the context of professionalization and the founding of the Association of the Bar of the City of New York at the same time by Representative Jenckes's allies. Part III tracks the passage of the DOJ Act from 1868 to 1870. This Part also tracks the passage and revision of the Tenure of Office Act around the same time and notes why the DOJ Act lacked civil service reforms. Part IV and the Conclusion offer observations on the DOJ's shortcomings and false start in the 1870s, but also its long-term success in cultivating norms of professional independence. The DOJ Act might have been more aspirational than successful in creating professional independence, but it laid a foundation for the evolution of those norms. This story helps explain a historical paradox: how the uniquely American system of formal presidential control over prosecution evolved alongside the norms and structures of professional independence.

I. GOVERNMENT LAWYERS AND PROSECUTION IN THE EARLY REPUBLIC

There has been remarkably little historical research into the DOJ's founding and early years. Other scholars have demonstrated that the Founding era created an incredibly decentralized system of federal law enforcement. (27) Jerry Mashaw has recently revealed how much administrative law took shape before the Civil War. (28) Nevertheless, the story of the chaotic and politicized disorganization of government lawyers before the Civil War and the DOJ's creation soon after remind us of the significance of the postwar reorganization efforts.

First, it is important to note that the federal government had a minor role in criminal law in this era. In some cases, Congress used criminal fines to achieve its limited regulatory goals, but it relied heavily on state officials and state courts, as well as private plaintiffs. (29) When Congress used criminal fines to enforce the Embargo Act of 1807, the government found that it had too few district attorneys, with too little time, to prosecute offenders, and the embargo was made a mockery. (30) It is also surprising to find early observations that the federal judges themselves led what appeared to be prosecutions during the Whiskey Rebellion of 1794, and initiated Alien and Sedition Acts prosecutions in conducting grand juries. (31)

The Judiciary Act of 1789 designated that the President would appoint a "meet person learned in the law" in each judicial district to "act as attorney for the United States in such district." The Judiciary Act also permitted the President to appoint a "meet person, learned in the law" to
   act as attorney-general for the United States, who shall be sworn
   or affirmed to a faithful execution of his office; whose duty it
   shall be to prosecute and conduct all suits in the Supreme Court in
   which the United States shall be concerned, and to give his advice
   and opinion upon questions of law when required by the President of
   the United States, or when requested by the heads of any of the
   departments, touching any matters that may concern their
   departments. (32)


However, the Act did not mention any authority of the Attorney General over the district attorneys. Over the next eight decades, the Attorney General exercised no control over them. There was no consensus that government prosecution was "a quintessentially executive function," as Justice Scalia has concluded. (33) A significant number of the prosecutions were undertaken by private parties during this period. (34) In the colonial era, county prosecutors were select ed by judges or nominated by judges. (35) In the early Republic, state constitutions often placed attorneys general and prosecutors under the judiciary articles of their constitutions. (36) Some of the state constitutions assigned the power of appointment to the legislature with no role for the governor. (37)

The U.S. Constitution did not specify the President's removal power, but the First Congress gave the President the power to dismiss executive officers at will (known as "the decision of 1789" (38)). The Attorney General's office was created by the Judiciary Act of 1789, and a draft of the Act gave the Supreme Court the power to appoint the Attorney General and district judges the power to appoint district attorneys. (39) These provisions were deleted, but a vestige of the earlier model remained: deputy marshals were appointed by the President, but they were removable by the courts. (40) The Act created the offices of Attorney General and district attorneys, but did not designate them as "principal" officers nor explicitly set a process for hiring and firing. (41) The Judiciary Act set forth the Attorney General's responsibilities: to advise the President and department heads on legal matters and to represent the United States at the United States Supreme Court. (42) But there were also signs that Congress envisioned having power over the Attorney General, too. (43)

The First Congress created four positions that would form the first cabinet: Secretary of State, Secretary of War, Secretary of the Treasury, and Attorney General. The First Congress also created the State Department, the War Department, and the Treasury Department, but did not give the Attorney General a department or any staff. (44) The first Attorney General, Edmund Randolph, asked President Washington for at least one clerk, but the bill died, and it took twenty-seven years for the Attorney General to be given a clerk. (45) Congress set his salary significantly lower than the other cabinet members, and the office's salary was brought up to par only after 1853. (46) Attorney General Randolph had to find private legal work on the side:
   I am a sort of mongrel between the State and the U.S.; called an
   officer of some rank under the latter, and yet thrust out to get a
   livelihood in the former,--perhaps in a petty mayor's or county
   court.... Could I have foreseen it, [it] would have kept me at home
   to encounter pecuniary difficulties there, rather than add to them
   here. (47)


Until 1854, each Attorney General maintained a substantial private practice, and many did not even live in Washington, D.C. Until 1819, the Attorney General did not even have his own clerk, and until 1821, an office. (48) The Attorney General functioned more like a part-time White House Counsel or a one-person Office of Legal Counsel, and he did not supervise the work of the district attorneys. Edmund Randolph recommended to Congress that it give the Attorney General supervision of district attorneys. President Washington submitted his proposal to the House of Representatives, but it went no further. (49)

In the very beginning, the Attorney General had no power over the district attorneys or their appointment process. (50) In 1797, Congress gave the Comptroller of the Treasury significant prosecutorial authority over district attorneys in directing suits over revenue and debts. (51) In practice, district attorneys were not really supervised at all. Active supervision was impossible over such long distances, with such limited transportation and communication. (52) They also had too little work to require much attention. Over time, the Treasury Department increased its prosecutorial role, with the power to initiate civil and criminal proceedings to collect debts. The Comptroller, Collector of Customs, and tax collectors exercised federal power on the ground with increasingly heavy workloads. Throughout most of the nineteenth century, federal district attorneys were not paid a salary, but were paid by fees (per conviction until 1853). (53) Congress did not adopt a fixed salary for district attorneys until 1896. (54) This decentralization in the eighteenth and nineteenth centuries undercuts Justice Scalia's history of prosecution in Morrison v. Olson. (55)

In 1820, Congress switched the control of district attorneys from the Comptroller to a new office, the Agent of the Treasury. (56) When President Jackson took office, he called on Congress to increase the authority of the Attorney General, but instead, Congress created the office of Solicitor of the Treasury and specifically gave it authority over the district attorneys. (57) From 1797 through 1870, the Treasury Department had either sole or primary supervision over district attorneys.

As the Treasury Department took over the supervisory role, district attorneys took over traditional roles that had been served by Treasury officials and thus played a more significant role in collecting revenue. (58) The Attorney General's office even moved into the Treasury Department (59) and stayed there because the Treasury Department had so clearly taken the lead in law enforcement. Compared to their modern descendants, district attorneys of the antebellum era were more like Treasury officials, or today's IRS lawyers, and had limited jurisdiction. (60)

In the mid-nineteenth century, there were some attempts to foster professional independence. William Wirt served as Attorney General for twelve years under Presidents Madison and Monroe and tried to create a stare decisis practice of respecting the opinions of past Attorneys General, a way of restraining the office in order to promote a culture of professionalism and nonpartisanship. Attorney General Wirt said of his office:
   I do not consider myself as the advocate of the government ... but
   as a judge, called to decide a question of law with the
   impartiality and integrity which characterizes the judician. I
   should consider myself as dishonoring the high-minded government,
   whose officer I am, in permitting my judgment to be warped in
   deciding any question officially by the one sided artifice of the
   professional advocate. (61)


This tradition continued for a while, but eroded in light of Attorney General Roger Taney's association with Andrew Jackson. (62) President Jackson had clashed with some members of his cabinet early in his tenure, and then required more allegiance from his appointees thereafter. It eroded further during the Civil War, when President Lincoln's Attorney General, Edward Bates, appeared to be working to justify the administration's wartime policies rather than serving independently and impartially. (63)

There were also a few calls for creating a law department under the Attorney General as the government lawyers' workloads increased. Each department had its own lawyers, and coordinating legal efforts had become a problem. In 1830, President Jackson called for placing all the law officers in the executive branch under the supervision of the Attorney General, but Congress rejected the idea. (64) President Polk proposed a similar change in 1845, but the Whigs in Congress attacked it as a Trojan horse for creating jobs for Democrats, and it died. (65) In 1849, Congress established the Interior Department, a new catchall department that loosely shared supervision of the district attorneys with the Treasury Department. Alexander H.H. Stuart, one of the first to hold the office of Secretary of the Interior, resented this responsibility. Secretary Stuart called for a "Department of Justice" to take over those duties from him. (66) Momentum was building for restructuring, but every effort triggered stronger and stronger opposition.

Caleb Cushing, President Pierce's Attorney General, made a public call for a new law department in 1854. Attorney General Cushing was regarded as having helped professionalize the Attorney General's office by fully devoting himself to the office and halting his private practice. (67) He wrote to the President and Congress that when the Attorney General is asked to give legal advice, "he feels, in the performance of this part of his duty, that he is not a counsel giving advice to the government as his client, but a public officer, acting judicially, under all the solemn responsibilities of conscience and of legal obligation." (68) This comment reflected a perspective that the Attorney General should exercise professional independence from the administration, framed as a more "judicial" role. In the same message, Attorney General Cushing also had endorsed accountability to the President. (69) Attorney General Cushing reflected an internally divided view about his own office--and also foreshadowed the tensions between the independence and accountability of the future law department. Regardless of Attorney General Cushing's framing, Congress rejected the proposed department in 1854. (70) One reason for these failed attempts was political inertia. Another reason was that officials in the Treasury Department resisted changes that would reduce their personnel and power.

Whereas there was a stalemate in peacetime, the Civil War created openings and demands for change. A few months after Fort Sumter, the first change was Congress granting the Attorney General supervision over district attorneys. (71) Four days later, Congress passed a second statute stating that the district attorneys were still under the command of the Treasury Department, too. (72) Thus, the district attorneys had to report to three different supervisors: the Solicitor of the Treasury, the Secretary of the Interior, and the Attorney General. The same legal framework also allowed district attorneys and other departments to hire outside counsel, (73) as Congress grasped that the war would spike the amount of government litigation.

Even after Congress gave the Attorney General more supervisory power, practice did not change much, however. The Attorney General still had no department and no staff to help him supervise district attorneys. During the war, Attorney General Edward Bates had plenty of direct responsibilities and no extra time to supervise anything other than the most significant cases. The district attorneys still did not know whether they were supposed to report to the Attorney General, the Solicitor of the Treasury, or the Secretary of the Interior. The heads of other departments still gave directions to the district attorneys, as well, and those departments continued to have their own law offices and to hire their own special counsel. (74)

The war had created a deluge of legal cases and controversies for each department, and the conflicts between departments and offices multiplied. (75) By the end of the war, the federal courts' dockets had a backlog of war-related cases (treason, confiscation, and revenue cases) on top of their usual business. (76) The Civil War had indeed triggered a change in the organization of federal law enforcement: increased spending on outside counsel in an ad hoc way. This direct effect of the war and Reconstruction then led to a backlash against the hiring of outside counsel. Thus, it is true that the Civil War and increasing litigation led to the DOJ, but not in the direct sense that historians have assumed; it was a backlash against the actual measures for meeting those demands and a step of institutional "learning."

II. PROFESSIONALIZATION IN THE LATE 1860s AND 1870

The Civil War and Reconstruction have been overemphasized as the context for the Department of Justice. The professionalization movement of the 1860s and 1870s has been overlooked. This Part offers the background of the rise of the bar associations--and the connections between that effort, the civil service movement, and Thomas Jenckes himself--before the next Part traces Representative Jenckes's work on the DOJ Act in the late 1860s through its passage in 1870. The subsequent Part tracks Representative Jenckes's simultaneous efforts for civil service reform. In 1870, elite New York lawyers founded the Association for the Bar of the City of New York--the first modern bar association and a major turning point in the professionalization of American law. These elite lawyers later formed the American Bar Association in 1878, and they were linked to Representative Jenckes and the Attorney General's office. The goals were strikingly similar: to make public or private lawyering more exclusive and less embroiled in partisan politics and patronage.

Entire books and articles could be written about the major steps toward the professionalization of American law in the late 1860s and the 1870s. In fact, some have been. (77) The increasing professionalism of the Attorneys General was not an isolated development. The state bench was also professionalizing in the 1870s. (78) Christopher Columbus Langdell introduced his case method of "legal science" to Harvard Law School in 1870, as a "scientific morality" spread throughout various academic disciplines. (79) The large corporate law firm emerged in the 1870s. (80) The 1870s also witnessed the emergence of the modern--and exclusive--bar association.

Lawyers had made significant advances in professionalism in the 1840s and 1850s, especially in the founding of many legal periodicals and their sustainability thereafter. (81) Soon after the Civil War, lawyers began organizing the first formal bar associations and reforming the judiciary. In fact, 1870 was a watershed year with the establishment of the Association of the Bar of the City of New York (now known as the New York City Bar Association). Dorman Eaton, who was Representative Jenckes's ally in the fight for civil service reform, was also one of the central figures in both the judicial reform effort and the creation of the Association of the Bar of the City of New York. (82) From 1873 through 1875, Eaton would serve as Chairman of the United States Civil Service Commission, whose creation Representative Jenckes pushed through Congress in 1871. Eaton would also draft the groundbreaking Pendleton Civil Service Act of 1883, (83) and he published some of the most important books and articles on civil service reform in this era, including Civil Service in Great Britain. (84)

These twin movements in New York (bar organization and judicial reform) were a reaction to scandals over partisanship and patronage. "Bench and bar settle deeper in the mud every year and every month. They must be near bottom now," wrote one leading New York lawyer, George Templeton Strong, in 1868. (85) In the 1860s, New York politics and New York judges were perceived as the most corrupt in the country. Machine politicians controlled offices throughout the state with patronage. An infamous example of partisan corruption was the Erie Railroad scandal of the late 1860s, involving Tammany Hall, tycoon Cornelius Vanderbilt, the legendarily unscrupulous financier Jay Gould, and trial court judge Albert Cardozo. (86) Cardozo resigned in 1872, and many other judges were tainted in similar scandals. (87) In the late 1860s, elite New York City lawyers led a fight to lengthen state judges' terms to increase their job security and to insulate them from partisan politics. The established bar had strong influence over New York's constitutional convention in 1867, and judicial reform was a top priority. (88) Judge Charles Daly, a Democrat elected to the Court of Common Pleas in New York City and a delegate at the 1867 convention, declared from experience: "The real evil at present is that, after [a judge] goes upon the bench, he depends for his continuance there upon ... all the influences which affect political parties." (89) In 1869, the voters separately ratified the convention's judiciary article, but rejected the other parts. Lawyers subsequently pushed for an amendment to return from judicial elections to judicial appointments, but the voters rejected that measure in 1873. (90) Other states also lengthened the terms of judges around this time, including Maryland, California, Wisconsin, Missouri, and Pennsylvania. (91) In the early 1870s, Pennsylvania elites also focused on combating corruption and separating the courts from excessive electoral politics. These leaders called for a new constitutional convention in 1873, in which the tenure of state supreme court justices was lengthened from fifteen to twenty-one years. (92) There was bipartisan consensus that it was necessary to insulate judges from the pressures of campaigning and patronage politics. (93)

Dorman Eaton and William Evarts, the recent Attorney General and one of the highest profile lawyers in America, led the movement in 1869 and 1870 to organize the New York City bar as part of the fight against corruption in business and politics. (94) The simultaneity of their various reform projects gives additional context to the goals of the leading lawyers at the time. In December 1869, New York City lawyers circulated a petition later known as the "call for organization," which stated that the undersigned believed "that the organized action and influence of the Legal Profession, properly exerted, would ... sustain the profession in its proper position in the community, and thereby enable it, in many ways, to promote the interests of the public." (95) By January 1870, the letter had more than 200 signatures. William Evarts had recently returned to New York from Washington after serving as President Johnson's Attorney General, with a reputation for nonpartisanship and professionalism. He was one of the most respected lawyers in the country, and the organizers of the letter campaign quickly offered him the presidency of their emerging organization. (96) The first organizational meeting was held on February 1, 1870. (97)

At that first meeting, the attendees gave speeches attacking the Jacksonian era for opening up the bar too broadly. Before 1846, the bar was limited to those who had passed a series of examinations over a period of six to ten years. In 1846, the Radical Barnburner faction of the Democratic Party controlled the state constitutional convention and adopted judicial elections. After 1846, the waiting period was eliminated, and "[a]ny male citizen" who had "the requisite qualifications of learning" could practice law in all New York courts. (98) Those qualifications were lower than they had been before. The more elite lawyers at the 1870 meeting blamed the Radicals' 1846 constitution for delivering
   almost a death blow to the legal profession. Disastrous effects
   could not but flow from the organic changes made by that
   instrument.... [W]hen the gates of the Bar were thrown entirely
   open; when those honorable distinctions which formerly existed in
   the profession were abolished ... and when every man, from the
   merest tyro to the greatest and most renowned amongst us, was put
   on the same footing, it became a necessary result that without some
   link which should connect and bind the more worthy of the
   profession together, [the 1846 constitution] must accept its
   destiny and be eventually destroyed. (99)


William Evarts gave a rousing speech on cleaning up the legal profession from patronage, corruption, and politics, referring to the Erie scandal directly. He concluded by stating that the aim of the new organization was to "restore the honor, integrity and fame of the profession," staking out an ambitious goal beyond merely creating a library and a social club. (100) Later, Samuel Tilden (who would become the Democrats' presidential nominee in 1876) gave another inspired speech to the members echoing William Evarts:
      Sir, the City of New York is the commercial and monetary capital
   of this continent. If it would remain so, it must establish an
   elevated character for its Bar, and a reputation throughout the
   whole country for its purity in the administration of justice.
   [Applause.] ... [I]t is impossible for New York to remain the
   centre of commerce and capital for this continent, unless it has an
   independent Bar and an honest judiciary. [Great applause.] (10l)


The organizers of the new bar association were signaling that they were defying party politics. One of the organizers paid a steep price. Dorman Eaton, Representative Jenckes's fellow crusader for civil service reform, was almost beaten to death by assassins hired by his political opponents soon after these meetings. The New York Times blamed one of the Erie Railroad executives and "Boss Tweed," the infamous New York party boss. The attack was more likely the result of Eaton's anticorruption efforts against the city sanitation offices, but nevertheless, the causes were interrelated. (102) Eaton eventually recovered, and gave up his law practice to pursue political reform full time. The New York City Bar Association thrived, doubling its membership by the middle of 187 l, even though the dues were expensive. (103) Meanwhile, the organization increasingly turned its resources to legal and political reform to combat partisan influence, particularly over the courts. (104)

In the next few years, other lawyers followed the New York City bar's lead. During the 1870s, bar associations formed in six major cities and seven states. (105) Then the American Bar Association (ABA) was established in 1878. William Evarts was also one of the core founders of the ABA, along with the DOJ's first Solicitor General, Benjamin Bristow. (106) Of course, those events occurred after the DOJ was established, but the post-Civil War years have long been recognized by historians as a turning point in the professionalization of American law, and the DOJ's founding was on the leading edge of those efforts. (107)

The common theme of these professionalization movements in the 1860s and 1870s was, to a degree, to separate lawyers from regular partisan politics. Additionally, elite lawyers, in their minds, were also trying to restore a measure of honor or prestige to the legal profession by making it more exclusive. From a different perspective, they were trying to preserve a traditional and established bar elite from popularization and challenges from outside groups. The effort to eliminate "outside counsel" from the federal government also made the ranks of government lawyers smaller, more regulated, and more exclusive.

III. DEPARTMENT OF JUSTICE ACT

A. The DOJ Act's Beginnings and the Tenure of Office Act, 1865-1869

The Civil War and Reconstruction had produced a flood of government litigation (civil as well as criminal) that was mostly unrelated to civil rights cases. (108) The war's upheaval and the government's interventions created a huge number of captured and abandoned property disputes, customs cases, and revenue cases. (109) The federal government had instituted a series of new taxes to finance the war, and although it dropped some of those taxes when the war ended, it maintained the excise tax on tobacco and liquor, and relied upon many more criminal prosecutions to enforce them. (110) The legal system was overloaded, and the federal government relied heavily on outside counsel on a fee basis. (111)

Congress's first solution to the wartime increase in legal casework in 1861 was to create the Assistant U.S. Attorney position, and, as noted above, to open up discretion to hire more outside counsel. (112) Then, in 1866, Congress created new law officers in several departments within the War Department, the State Department, and the Treasury Department. (113) But again, members of Congress recognized that the multiplying number of separate law offices was exacerbating a coordination problem. In 1867, when the State Department requested its own solicitor's office, Senator Lyman Trumbull of Illinois replied that the Attorney General's office should be an independent department with the singular responsibility for interpreting the law for all the departments to reduce "difficulty, expense and uncertainty." (114) Congress gave the State Department a new solicitor's office anyway, but the Senate Judiciary Committee began a study of the problem. Then the task was referred to Jenckes's Joint Select Committee on Retrenchment, a joint committee of the two Houses charged with reducing government waste and inefficiency. (115)

Representative Jenckes, a member of the Joint Select Committee on Retrenchment, introduced a bill to establish a "department of justice." (116) Because Representative Jenckes is the main protagonist in both the DOJ story and the civil service story, some background about him and the civil service movement is necessary. Before Representative Jenckes became involved in the DOJ Act, he was singularly focused on civil service reform. Stephen Skowronek, in Building a New American State, wrote, "A civil service career system is one of the hallmarks of the modern state. Its chief characteristics are political neutrality, tenure in office, recruitment by criteria of special training or competitive examination, and uniform rules for the control of promotion, discipline, remuneration, and retirement." (117) Civil service reform was meant to make administration less partisan, more professional, and more efficient. Representative Jenckes also believed it would cut waste and allow the government to employ fewer people--consistent with retrenchment. Moreover, civil service was an opportunity for the entrenchment of sympathetic Republicans. Congress's Joint Select Committee on Retrenchment drafted and oversaw the DOJ Act and the civil service bills at the same time. This was a remarkable opportunity for reform, reorganization, and experimentation. (118)

Representative Jenckes came from an established New England family and was well educated in math, science, and literature. (119) He was a successful patent lawyer in Rhode Island. He had been a conservative Whig, and he had opposed the "Dorr Rebellion" in 1840s Rhode Island, an uprising of pro-democracy forces against the powerful Whig elite, which had used restrictive voter eligibility laws to retain power. (120) Representative Jenckes was one of many reformist Republicans who grew alienated by President Grant and his supporters blocking reform, engaging in partisan patronage, and tolerating corruption. Starting in 1870, these disillusioned reformers began leaving his administration and opposing his agenda in Congress. (121) Many of these "best men" reformers had abandoned Reconstruction by 1868, and shifted their focus to reform and business growth. (122) They aimed to create "an independent party composed exclusively of good men," in the words of Henry Cabot Lodge. (123) In the 1872 election, they bolted to form the "Liberal Republican" Party, combining with Democrats to support reformer Horace Greeley against President Grant. Representative Jenckes aligned himself with the Republicans who would soon form the Liberal Republicans and "Half-Breeds" who opposed the pro-patronage "Stalwart" Republicans. They were known as the urban reformist "Mugwumps" in the 1880s, before they evolved into an elite, urban professional branch of the Progressive movement at the turn of the century. (124) Representative Jenckes and other Liberal Republicans did not care as much about black civil rights as the Radicals, and many Liberal Republicans believed that black civil rights were a distraction and a waste of resources. (125) In Congress, Representative Jenckes did support stronger wording for the Fifteenth Amendment's guarantee of voting rights, (126) but there is not much other evidence that he cared about the enforcement of black civil rights. After Representative Jenckes died, a dozen friends and allies put together a memoriam to highlight his accomplishments. In these memorials, his friends noted his reputation for being "cold and unsocial," or "cold and frigid." (127) But they repeatedly praised his deep commitment to the legal profession and patent law. (128) Friends described him as having "left a name among the great lawyers of the country." (129) As a young twenty-three-year-old lawyer, he argued a case before Supreme Court Justice Joseph Story, and he rose to prominence in the legal community. (130) Newspapers praised his efforts to craft a compromise on bankruptcy reform, a project of modernizing the law. (131) A fellow lawyer, B.F. Thurston, wrote, "No man among us more thoroughly loved the profession of the law for its own sake than he.... [Representative Jenckes did not] prostitute his profession for its baser rewards. He cared more for the triumph than for the spoils of the victory." (132) The Chief Justice of the Rhode Island Supreme Court eulogized, "Immediately upon coming to the bar, he took rank among the leaders of the profession," and surpassed them. He praised Representative Jenckes's legal skills, but noted, "Mr. Representative Jenckes was more than a lawyer. He had the capacities and the aspirations of a statesman and a legislator." (133) But not one memorial or newspaper discussed Representative Jenckes's views on ex-slaves or civil rights. (134) His letters and other writings say little of these matters. When Representative Jenckes argued for civil service reform, he connected the professionalization of government to the protection of property rights, but he did not mention the rights of former slaves, or Reconstruction. (135)

Representative Jenckes's Joint Select Committee on Retrenchment--the committee that drafted the DOJ Act and led the civil service effort--lacked any members who cared deeply about black civil rights. Its chairman, Senator James W. Patterson, offered the DOJ Act in the Senate. Leonard White, a leading historian on American administrative history, observed that Senator Patterson and his committee focused only on cutting budgets, abolishing offices, and eliminating fraud and waste. (136) The committee included four senators and seven representatives (including Representative Jenckes). (137) They were centrists, fiscal conservatives, and future Half-Breeds, and no one was committed to black civil rights. (138) If you came to Washington to shrink the federal government and to scale back Reconstruction, you probably were interested in getting on the Joint Select Committee on Retrenchment.

Early in 1868, Representative Jenckes's Joint Select Committee on Retrenchment was working on its law department bill as two other committees, the House Judiciary Committee and the Senate Judiciary Committee, were working on their own law department bills. (139) However, the battle between Andrew Johnson and Congress pushed all other legislative efforts aside. In the fall of 1866, President Johnson had just campaigned against congressional Republicans in a vicious string of speeches known as the "Swing around the Circle." (140) President Johnson began purging Republicans and using offices for his own patronage purposes. He was also interfering with Secretary of War Edwin Stanton, and he was undermining the Freedman's Bureau and its attempts to enforce ex-slaves' civil rights. (141) When U.S. Attorneys stepped up their efforts to enforce civil rights laws in Kentucky, President Johnson's Attorney General Henry Stanbery cut them off, too. (142) In March 1867, Congress overrode a veto to pass the Tenure of Office Act, shielding President Lincoln's appointees from removal without the Senate's consent. All civil officers who had been appointed with Senate confirmation were entitled to their office until the Senate confirmed the President's nominee to replace him. Cabinet members would retain their offices during the full four-year term of the President who had appointed them, plus one additional month, unless the Senate consented to their removal (thus entrenching President Lincoln's cabinet through April 1869). (143) The Tenure of Office Act also required evidence of misconduct, crime, incapacity, or legal disqualification for recess suspensions, and even then, the statute required Senate concurrence after the recess in order to remove the officer. (144)

The Tenure of Office Act demonstrated that congressional Republicans did not see themselves as bound by the historical precedent from the First Congress, as they overrode the statutes passed by this Congress that had given the President discretion to fire principal officers. (145) In 1867, the congressional Republicans referred explicitly to "the decision of 1789" during the Tenure of Office Act debates, but they said that Congress's decision then was a mistake of "infancy and inexperience, resting mainly, perhaps, on its unbounded confidence in the personal virtues of its first Chief Magistrate," George Washington. (146) They cited Alexander Hamilton's The Federalist No. 77 in favor of the Senate's power "to displace as well as to appoint," and they cited Daniel Webster's call in 1835 to "reverse the decision of 1789." They cited Justice Story calling Congress's decision in 1789 an "extraordinary" case of allowing "a bare majority" of Congress to confer a constitutionalized power, and Chancellor Kent's opinion that the decision was merely "loose, incidental, and declaratory." (147) They decided to give the Senate increased power over dismissal to check the President's power--and the statute included no sunset provision or a time limit for its applicability. Representative Jenckes himself included parallel language from the Tenure of Office Act in his civil service bills to protect his civil service commissioners in 1866 and 1867. (148) Andrew Johnson attempted to remove Secretary of War Edwin Stanton and to declare the Reconstruction Acts void. He was impeached by the House, and his Senate trial consumed the rest of Congress's attention from March through May 1868. As soon as the trial ended, the 1868 presidential campaign consumed the rest of the year. (149)

After the new Congress assembled in 1869, the House moved immediately to repeal the Tenure of Office Act in its entirety, arguing that it was only a temporary measure for an exceptional circumstance. In a sign of the underlying motivation for the repeal, the fight was led by Representative Benjamin Butler, a Radical who had a reputation for protecting party patronage. (150) The Tenure of Office Act was an obstacle to the spoils system by allowing the Senate to block the rotation of offices. The House voted 138 to 16 in favor of repeal, a sweeping bipartisan consensus. (151) Among the small number who voted to retain the Tenure of Office Act were Representative Jenckes and a handful of civil service reformers. (152) It may seem odd that a supporter of "retrenchment," reorganization, efficiency, and budget cutting would support the Tenure of Office Act, which gave public employees extra job security and took away flexibility in cutting inefficient officers or unnecessary offices. But congressmen in these years identified the Tenure of Office Act as a "restraint[] in the disposition of executive patronage." (153) In defending the Tenure of Office Act, they asked, "[I]s it not desirable that the executive patronage should be rather diminished than increased?" (154)

It may seem inconsistent to modern eyes for the supporters of retrenchment and budget cutting to embrace the job security measures for federal employees (both the Tenure of Office Act or civil service protections), but there were different baselines and priorities in 1869. Nineteenth-century patronage machines relied on "rotation in office" to keep a steady stream of partisan supporters moving in and out of government jobs. (155) Civil service reformers believed retrenchment and efficiency depended upon slowing down nineteenth-century patronage machines, even if it made it more difficult to fire incompetent appointees. Reformers believed the Tenure of Office Act would check executive discretion, slow down the distribution of patronage, and protect competent appointees from partisan firings. (156)

In President Grant's first annual message to Congress, he called for the Senate to pass the repeal bill: "What faith can an Executive put in officials forced upon him, and those, too, whom he has suspended for reason?" (157) The Senate, however, was not interested in giving up its power over dismissals, even if a Republican was in the White House. Senator Roscoe Conkling of New York explained,
   I wish to leave the President-elect free to the full and useful
   exercise of the good judgment and good qualities which we all
   ascribe to him. At the same time, I wish ... to preserve the
   position which the Senate has maintained in the last and most dire
   exigency known in our jurisprudence. (158)


Playing hardball, President Grant announced that if the Senate would not repeal the law, he would leave all of President Johnson's appointees in office, and he would only nominate candidates for vacancies that happened to arise due to death or resignation. President Grant knew that the senators would be deterred once they realized that he was serious about keeping the holdovers from the hated Johnson Administration and that there would be no new spoils for the Republican Party. (159) The Republican senators were suddenly in a more compromising mood. They drafted a revision that removed the language specifying a Senate vote for cabinet members, implicitly giving back to the President the power to dismiss them at will. Their revision dropped the requirement that the President show cause. However, they retained the requirement of Senate concurrence on dismissals for any officer who had already been confirmed by the Senate. (160) For example, all U.S. Attorneys, solicitors, and other principal law officers remained protected under the revised Act. Like the original 1867 Act, the revision was designed to protect high-ranking officers from presidential removal--even the previous administration's holdover officers. President Grant and the Senate understood that the Tenure of Office Act was a significant political tool, and the Act would become controversial again, especially in the 1880s. (161) The significance of this Act in the DOJ's story is that it meant that the DOJ was not created in the context of unitary executive power over district attorneys and other principal law officers, giving them a degree of political protection and independence.
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Title Annotation:Introduction through III. Department of Justice Act A. The DOJ Act's Beginnings and the Tenure of Office Act, 1865-1869p. 121-148
Author:Shugerman, Jed Handelsman
Publication:Stanford Law Review
Date:Jan 1, 2014
Words:8054
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