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Transformative Bureaucracy: Reagan's Lawyers and the Dynamics of Political Investment

Published online by Cambridge University Press:  19 March 2009

Steven M. Teles
Affiliation:
Johns Hopkins University, New America Foundation

Abstract

Previous work in law and political development has emphasized the role that a “support structure” in civil society plays in translating electoral success into legal outcomes. In this paper, I claim that legal change can also work in the other direction—political appointees in government can use their power to assist their allies in civil society. Drawing on in-depth interviews and archival materials, I show how—especially under Attorney General Meese—the Reagan Department of Justice invested in the ideas (through its support of originalism), organizations (especially the Federalist Society), and personnel of the conservative legal movement and reorganized itself to give these longer-term objectives more importance in the department. These investments add up to a case of “transformative bureaucracy”: the use of bureaucratic power to transform the conditions of future political conflict.

Type
Research Article
Copyright
Copyright © Cambridge University Press 2009

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References

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54. Teles, The Rise of the Conservative Legal Movement, chap. 7.

55. Along with the Institute for Humane Studies, ISI is the oldest and most active conservative organization on campus, helping subsidize speakers, organizing conferences of young conservatives, and providing scholarships for graduate education.

56. Interview with Cribb, July 2007.

57. David Lewis has found that, “Reagan's head of Presidential Personnel, Pendleton James, recounted how Reagan told him that the administration provided an opportunity to bring bright young people into government, expose them to the administration and they'll go back home and ‘there's mayors, governors, city council members’ there. Reagan's first head of the Office of Personnel Management recounted how some in the administration viewed Schedule C appointments as a training ground for future Republican appointees. They placed young Republicans in junior appointed positions to start and have them work their way up.” David Lewis, “Personnel is Policy: George W. Bush's Managerial Presidency,” in Colin Provost and Paul Teske, eds. Extraordinary Times, Extraordinary Powers: President George W. Bush's Influence Over Bureaucracy and Policy (New York: Palgrave, Forthcoming).

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59. Interview with Cribb, July 2007.

60. These young conservatives proved something of a headache for some of the DOJ's senior officials who were not as ideologically committed as they were. This is a major theme of Solicitor General Fried's, CharlesOrder and Law: Arguing the Reagan Revolution (New York: Simon and Schuster, 1991)Google Scholar. This point is further elaborated in Amanda Hollis-Brusky, “The Reagan Administration and the Rehnquist Court's New Federalism: Understanding the Role of the Federalist Society,” http://works.bepress.com/cgi/viewcontent.cgi?article=1000&context=amanda_hollisi

61. Interview with Cribb, July 2007.

62. “Summary of Discussion,” 79.

63. Interview with Richard Willard, July 2008.

64. Interview with Willard, July 2008.

65. Interview with Willard, July 2008.

66. Interview with Willard, July 2008.

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71. As quoted in Teles, The Rise of the Conservative Legal Movement, p. 141.

72. Interview with Cribb, August 2007.

73. Interview with Cribb, August 2007.

74. Comments of Kenneth Cribb, Conference on “The Legacy of the Department of Justice under Attorney General Edwin Meese III,” January 27, 2007, http://www.fed-soc.org/publications/id.424/default.asp.

75. Interview with Cribb, August 2007.

76. “I gave them the idea for it and they ran with it. I think it was when I was clerking, I had the idea that the Intercollegiate Studies Institute ought to start a group for lawyers, just like they had a group for law students.” Interview with Galebach, August 2007.

77. Interview with Galebach, August 2007.

78. Interview with McDowell, July 2007.

79. Interview with Cribb, August 2007.

80. Interview with Calabresi, July 2007.

81. Interview with Cribb, August 2007.

82. Teles, The Rise of the Conserverative Legal Movement, pp. 141–142.

83. Interview with McDowell, July 2007.

84. Interview with McDowell, July 2007.

85. Interview with Meese, July 2007.

86. Interview with Calabresi. July 2007.

87. Interview with Calabresi, July 2007.

88. Interview with Calabresi, July 2007.

89. Teles, The Rise of the Conservative Legal Movement, chap. 5.

90. As quoted in Teles, The Rise of the Conservative Legal Movement, p. 145.

91. Interview with Terry Eastland, July 2007.

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99. Interview with Meese, July 2007.

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101. Interview with McDowell, July 2007.

102. Yalof, David, Pursuit of Justices (Chicago: University of Chicago Press, 2001)Google Scholar, chap. 6; Goldman, Sheldon, Picking Federal Judges (New Haven, CT: Yale University Press, 1997)Google Scholar, chap. 8.

103. Interview with Markman, August 2007. Meese himself acknowledges that the speeches were “particularly directed at what our view of the judicial role was, and the standards by which we would be recommending to the President the appointment of judges.” Ronald Reagan Oral History Project, Miller Center, Charlottesville, VA, “Interview with Edwin Meese III,” recorded August 9–10, 2001, p. 204.

104. Interview with Cribb, August 2007. Meese himself acknowledges the linkage with judicial selection: “It was a matter of [defining] what judges should do, in order to determine what sort of people should be judges.” Interview with Meese, July 2007.

105. Interview with McDowell, July 2007.

106. The Great Debate: Interpreting Our Written Constitution (Washington, DC: The Federalist Society, 1986).

107. Interview with Meese, July 2007.

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117. The concept of achieving coordination and direction through ideas, rather than direct hierarchical control, can be found (in very different contexts) in Kaufman, Herbert, The Forest Ranger (Baltimore, MD: Johns Hopkins University Press, 1960)Google Scholar and Kershaw, Ian, Hitler: Nemesis (New York: W.W. Norton, 1999)Google Scholar.

118. Interview with Meese, July 2007.

119. Humphrey's Executor v. United States, 295 U.S. 602 (1935) addressed the president's power to remove officers from independent commissions.

120. Interview with McDowell, July 2007.

121. Interview with Galebach, July 2007.

122. Interview with Cribb, August 2007.

123. Interview with Markman, August 2007.

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125. A much more extensive discussion of the substance of these reports can be found in Johnsen, Dawn, “Ronald Reagan and the Rehnquist Court on Congressional Power: Presidential Influences on Constitutional Change,” 78 Indiana Law Journal 363 (2003)Google Scholar. A useful critique of Johnsen's framing of these reports can be found in Amanda Hollis-Brusky, “The Reagan Administration and the Rehnquist Court's New Federalism”

126. Interview with Markman, August 2007.

127. Interview with Markman, August 2007.

128. A discussion of the historical turn in legal scholarship can be found in Kalman, Laura, The Strange Career of Legal Liberalism (New Haven, CT: Yale University Press, 1998)Google Scholar. Examples of liberal scholarship that has attempted to develop a “liberal originalism” are Amar, Akhil, America's Constitution: A Biography (New York: Random House, 2005)Google Scholar and Balkin, Jack, “Abortion and Original Meaning,” Constitutional Commentary, 24, no. 101 (2007)Google Scholar. Ackerman's, BruceWe the People: Volume One, Foundations (Cambridge, MA: Belknap/Harvard, 1993)Google Scholar can also be read as a response to originalism.

129. Consider that the major effort by the American Constitution Society, which was created to be a liberal counterpart to the Federalist Society, to plan out the future of liberal constitutionalism was called “The Constitution in 2020.” As part of that project, the OLP's planning documents described above were prominently discussed and treated as a kind of template for action. See http://islandia.law.yale.edu/acs/conference/index.asp.

130. An excellent discussion of “collective identity” can be found in Polletta, Francesa and Jasper, James, “Collective Identity and Social Movements,” Annual Review of Sociology (2001): 283305CrossRefGoogle Scholar.

131. Galvin, Daniel, Presidential Party Building (Princeton, NJ: Princeton University Press, 2009)CrossRefGoogle Scholar.

132. I am, of course, treating Smith and Meese for this purpose as ideal types—the reality was certainly murkier.

133. Skowronek, Building a New American State, chaps. 4 and 7.