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Advocacy does matter, doesn't it?

Your Humble Blogger discovers (via an AP story) an article by Richard Lazarus called Advocacy Matters Before and Within the Supreme Court: Transforming the Court By Transforming the Bar. The article is a hundred pages long, as is often the case with Law Review articles, and I certainly haven’t even skimmed very much of it. But the point is (as you would imagine) in the abstract, and even in the first sentence of the abstract: During the past two decades, the Supreme Court has witnessed the emergence of an elite private sector group of attorneys who are dominating advocacy before the Court to an extent not witnessed since the early nineteenth century.

Essentially, for much of the twentieth century, it appears to have been common for a case that reached to Supreme Court to be argued by the attorneys who had argued it at the previous level. Now, though, it is far more common for the people handling such a case to hire attorneys who are sort of Supreme Court specialists. And they are good at what they do: “The Court grants the petitions filed by the expert members of the Bar at a significantly higher rate and they also prevail on the merits more frequently.” Which means you would be silly not to hire one of them. Pretty much no matter what it costs.

And, to no-ones particular surprise, this is a group of white men. Many of them have been in the Solicitor General’s office, where they acquired the expertise. Although of course they are in theory available to any group with the money to hire them, they generally work for corporate clients. That’s how it goes.

Reading about this, Your Humble Blogger couldn’t help thinking about a recent(ish) conversation about lobbyists. If you recall, I don’t mind the existence of lobbyists, and generally feel that they do a valuable service. But, over more or less the same period, there’s been an emergence of an elite private sector group of lobbyists who dominate advocacy in Congress. My impression (which may be mistaken) is that for a generation or so before the eighties, if a group needed full-time lobbying, it hired lobbyists. And if it needed part-time lobbying, it would fly its head or advocate to DC to do it. Joe Lobbyist would be on the payroll of the Machinists Union, or the Sierra Club, or the Small Business Association. Since then, it has become much more common for Joe Lobbyist to be on the payroll of Lobbyist, Sleazebag, Goodman, Whore, incorporated. He may be representing the Machinists, but he’s working for himself. The K Street Project accelerated that to the point where the Machinists were told flat out that if they wanted their lobbyist to have a chance of talking to a legislator, that lobbyist would be on the payroll of LSGW,inc or one of half-a-dozen other similar firms.

Now, I’m not against specialization. I understand why and how an attorney with vast Supreme Court experience would have an edge, would know his audience and how to reach them. From that angle, there’s nothing wrong with it. From the other angle, though… it’s an awful lot of power in a few hands. Mr. Lazarus makes the case that the pro-business nature of the courts has been in part because this elite group of advocates is advocating largely for businesses. No, that’s not the only thing going on, but it’s an edge. And gets a little disconcerting when the rule is that anybody, rich or poor, can buy justice, as long as they can afford it.

Tolerabimus quod tolerare debemus,


Doesn't this objection also apply to the designated hitter?

I generally root for the Red Sox, but this was an uninspiring World Series . . .

Re: your last line: I think I rambled on for a couple of emails about this with you a few years ago, about how, though professed rule of law is preferable to professed rule of might, the actual legal system is difficult to distinguish from de facto rule of might. I keep hoping you'll have something illuminating to say on the topic, but I suppose there isn't much response possible other than to be disconcerted. Which I am.

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