The Creation of the Department of Justice: Professionalization without Civil Rights or Civil Service
Shugerman, Jed Handelsman, Stanford Law Review
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
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. …