Law Review: The right and left of the law profession
For much of his career, until he passed away in 1996, former New Jersey Supreme Court Chief Justice Robert N. Wilentz was a lightning rod for the right.
The problem, according to his many passionate critics, was that Wilentz was the epitome of an activist judge.
His famous - or depending on your point of view, infamous - Mount Laurel ruling forced New Jersey suburban communities to zone for low- and middle-income housing. This delighted developers who saw the decision as a green light to pack the landscape of some towns with townhouses and condominiums on the theory that more intense development would lower costs, opening the way for the disadvantaged.
Wilentz's decision in 1990 that the state spend more to equalize funding disparities between urban and suburban schools gave former Gov. Jim Florio the legal and constitutional cover to raise the state income tax.
But while some of this was playing out in New Jersey, and while his fellow New Jerseyans were dealing with the fallout, Wilentz himself was at a safe remove.
That is because for part of the time that Wilentz served on the state Supreme Court, he was living in Manhattan. He said this was necessary to be with his wife, who was being treated for cancer there. But the issue of his out-of-state residence generated allegations of hypocrisy and galvanized the opposition during his confirmation hearings for lifetime tenure.
Wilentz's career came to comprise many of the themes that conservatives find so troubling about the judiciary specifically and the legal profession in general, but he was hardly alone. Every time a public-interest lawyer challenges school funding formulas, or a big law firm takes on the pro bono defense of a Guantanamo detainee, it's like waving a red flag in front of conservatives who see it as the work of liberal lawyers pursuing an activist cause.
"You have a whole generation of lawyers who feel bad about being lawyers and who therefore subsidize the left to compensate for being in private practice," contends Edward Whelan III, president of the conservative Ethics and Public Policy Center in Washington. He is also a former law clerk for Supreme Court Justice Antonin Scalia, a hero to conservative legal scholars.
But are lawyers typically more liberal than the rest of society?
Hard data are limited and in some cases, such as that of public-interest law, where the debate has been particularly intense at times, the question of political leanings might be entirely beside the point.
In some of the profession's more elite neighborhoods there are clear signs of a liberal tilt.
One compelling survey of faculty at top-ranked law schools, published in the Georgetown Law Journal several years ago, found that among the one-third of professors who contributed to political campaigns, about 81 percent gave to Democrats.
The percentage was even higher among the most elite of the law schools - more than 90 percent at Harvard, Yale, and Stanford.
Public-interest legal organizations have long been viewed as liberal bastions.
At an Oct. 1 symposium on workplace inequality held by the Public Interest Law Center of Philadelphia, organizers distributed supplemental materials that included a long excerpt from President Obama's book The Audacity of Hope, and his defense of evaluating hiring practices by looking at the racial composition of the workforce.
There was also an address by a Duke University professor who blames poverty on affluent people who stack the deck against everyone else.
Yet with the influence of the conservative Federalist Society in filling key posts in the administration of former President Bush, and with the appointments of U.S. Supreme Court Chief Justice John Roberts and Justice Samuel Alito, it would be hard for conservatives to argue that they have no voice. That voice was most loudly heard with the recent Supreme Court decision overturning an affirmative-action plan for minority firefighters in New Haven, Conn.
Just as important, most of what lawyers deal with on a day-to-day level takes place quite outside the fever swamps of political ideology. The bulk of what lawyers do involves hashing out commercial disputes where the political landscape is neither blue nor red but green.
Even in the realm of public-interest law, filled as it might be with idealists eager to right social wrongs, the principle holds.
Impoverished homeowners who unwittingly lose title to their homes to scam artists; frail elderly tricked into refinancing debt at usurious rates; juveniles unjustly caught up in the maw of the criminal justice system, all get assistance from public-interest lawyers.
Bottom line: Without them, putting the question of political affiliation aside, these clients wouldn't have a chance.
And who could argue they don't deserve a chance?
Contact staff writer Chris Mondics at 215-854-S5957 or cmondics@phillynews.com.




