Government Lawyers, Democracy, and the Rule of Law

Criticism of the “politicization” of the role of federal government lawyers has been intense in recent years, with the scandals over the hiring practices at the Department of Justice, and the advice given to the administration by lawyers at the Office of Legal Counsel, concerning various aspects of the post-9/11 national security environment. Unfortunately, many of these critiques do not hold up very well under scrutiny. We lack a coherent account of what it means to “politicize” the practice of interpreting and applying the law. This paper argues that our evaluative discourse about the ethics of government lawyers is inadequately theorized. In particular, terms that are popularly used as epithets, such as “partisan,” “politicized,” and “biased” lawyering, as well as terms of praise such as “independence” and “impartiality,” need to be given a philosophically robust foundation. This is more difficult than it seems, however, because we expect government lawyers to respect two very different democratic ideals - majoritarian self-rule and the rule of law. The most sophisticated attempts to elaborate a theory of government lawyers’ ethics have tended to overemphasize one of these ideals at the expense of the other. The aim of this paper, therefore, is to hold on to the distinction between faithful interpretation of the law, on the one hand, and improper politicization of the role of government lawyer, on the other, while acknowledging that considerations of democratic legitimacy require that lawyers respect the substantive content of the President’s non-neutral policy agenda