Fifty states, fifty attorneys general, and fifty approaches to the duty to defend.

• Author: Devins, Neal
• Position: Continuation of III. Political Ambition and the Duty to Defend through Conclusion, with footnotes and appendices, p. 2144-2187

1. Politics in the Office of the State Attorney General

   Attorneys general frequently seek higher office, so much so that the "AG" label has been described as shorthand for "Aspiring Governor." (171) Studies have shown that around 21.5% of attorneys general run for Governor and around 10% run for Congress (7.7% for Senate; 1.9% for House). (172) In four-year electoral cycles, on average more than eleven attorneys general run for governor; in ten-year electoral cycles, on average nine attorneys general run for Senate. (173) In Alabama, all but one Attorney General ran for Governor from 1955-1997 (and the one who did not run had previously lost his reelection bid). (174) The long list of attorneys general that have sought higher office leaves no doubt that the position is a political stepping stone. This is especially true of elected attorneys general; as compared to appointees, they are around twice as likely to seek higher office: (175) 37% of elected attorneys general (as compared to 19% of appointed) seek higher office; 26% (as compared to 13.4%) run for governor, 9.3% (as compared to 4.7%) ran for Senate. (176)

   The office of attorney general--something of "a strange hybrid" in American government (177)--nurtures the political ambitions of its occupants because it facilitates policy entrepreneurship. While obliged to write opinions and represent government agencies, elected attorneys general can pursue their own agendas even as they fulfill these duties. Elected attorneys general sometimes use their opinions to assert and advance their legal policy preferences. (178) Furthermore, attorneys general typically have wide-ranging policymaking discretion stemming from their ability to sue on behalf of the state. They may sue state instrumentalities (179) and, by bringing lawsuits against private parties, increasingly function as an omnicompetent regulatory agency. (180)

   Consistent with political science claims that politicians are influenced by the '"structure of opportunities'" afforded by their office and more likely to "run for a higher office when their current office affords them many opportunities to advance in politics," ambitious attorneys general have proven adept at expanding their base by launching high-visibility legal challenges. (181) Most notably, state attorneys general capitalized on gaps in federal regulation by filing suits related to consumer protection, antitrust, and other matters. (182) They likewise have played to their bases by challenging federal legislation (including over two dozen challenges to the Affordable Care Act) (183) and by issuing opinions defending state practices said to violate federal rules. (184) They increasingly file certiorari petitions and amicus briefs in the Supreme Court, thereby attempting to make names for themselves. (185)

   The relationship of attorneys general to their staff also facilitates their entrepreneurial tendencies. Attorneys general are often personally involved in individual cases as "they are closer, geographically and personally, to those actually handling and supervising trials and appeals." (186) This proximity better enables attorneys general to advance their electoral and policy interests in litigation.

   With the rise of politically salient regulatory lawsuits against private interests and increased participation in U.S. Supreme Court cases, most attorneys general have appointed solicitors that help advance their legal policy agenda. (187) These solicitors are part of an attorney general's senior staff and sometimes handle a range of delicate non-appellate work--including the writing of formal legal opinions and the handling of important trials. (188) While state solicitors are often court-centric in their orientation (many are former U.S. Supreme Court clerks who eventually will pursue court-centered careers in private practice, the bench, and the academy),189 they also must be sensitive to "the immediate political ramifications of many appeals" (190) and the electoral fallout of their exertions, appellate or otherwise, because they labor for a political creature (the attorney general) keenly interested in those consequences. (191)

   The recent high-profile refusals to defend (along with the noisy choices to defend) are yet another example of attorneys general exploiting the advantages of their offices to advance their electoral fortunes. Just as suits against cigarette companies advanced the careers of ambitious attorneys general, the same is true of the choice whether to defend bans on same-sex marriage and regulation of guns.

   As compared to the U.S. Attorney General, state attorneys general seem more apt to decide not to defend. (192) To begin with, the U.S. Attorney General rarely seeks higher office and is in charge of an agency whose authority is linked to federal courts deciding cases litigated by DOJ lawyers. (193) Moreover, at the federal level, the duty to defend helps stave off congressional and agency attempts to limit DOJ control of government litigation. (194) In contrast, state attorneys general frequently seek reelection or higher office and, as such, are less court-centric and far more likely to pursue policies that enhance their status and reputation among their political allies and voters more generally. As noted earlier, state attorneys general are independent power brokers who frequently engage in entrepreneurial lawsuits and litigation choices. (195)

   Three factors limit fallout from state failures to defend, thereby making the choice more acceptable to state attorneys general. First, sometimes other state attorneys have principal litigation authority. (196) For instance, some agencies and localities control their own litigation. (197) In most states, local prosecutors handle criminal cases. (198) Hence some attorneys general may be forced to play a circumscribed role in some litigation--sometimes they may be able to take over a case, and other times they may be limited to intervening or filing an amicus brief. (199) The Kansas Attorney General initially did not participate in Brown v. Board of Education and the Texas Attorney General never participated in Lawrence v Texas. (200) Where someone else has sole or primary litigation authority, a failure to defend on the part of the attorney general may seem more palatable precisely because she does not control the litigation in the first instance. Second, and equally significant, an attorney general's refusal to defend does not necessarily mean that a particular law will go wholly undefended. As discussed in Part II, sometimes the governor, affected agency, or state legislature may defend state law. (201) In states where someone else can mount a defense, the institutional costs of attorney general non-defense shrinks or disappears, meaning that few may be troubled by an attorney general's decision to gratify his constitutional or political preferences. Third, attorneys general may choose not to defend with little risk of upsetting expectations within a state's legal bureaucracy. Unlike the court-centered attorneys in the federal DOJ, (202) attorneys who work for the state attorney general are more apt to be quite attentive to her concerns. (203) Moreover, these attorneys are seeking "to learn specific types of law in order to gain benefits for subsequent private practice." (204) They are not part of a "jurocracy" that delegates substantial decision-making power to careerists. (205)

   In sum, because attorneys general have ample incentive to use their office for political advancement, and because the consequences of their nondefense likely are minimal, attorneys general are free to take litigation positions that reflect their legal policy preferences and resonate with their political base. (206)

   If we are correct about the latitude enjoyed by attorneys general, one may wonder why nondefense was not more common before 2008. Recall that before the recent spate of attorneys general refusing to defend laws unpopular with their base, nondefense was rare and seemingly never pursued for political gain. (207) For the most part, attorneys general advanced their political interests by bringing suits calculated to their advantage and by hiring effective solicitors general. (208) As discussed below, growing party polarization helps explain the recent dust-up between Republican and Democrat attorneys general over the duty to defend and the corresponding rise in opportunistic nondefense. Polarization also explains why attorneys general will increasingly turn to nondefense as another mechanism to advance their legal policy agenda.

2. Party Polarization and the Duty To Defend

   Sharp differences between Republican and Democratic views about the propriety of same-sex marriage bans explain why Republican attorneys general claim that same-sex marriage bans must be defended and why many Democratic attorneys general argue that the duty to defend does not apply to samesex marriage bans. (209) After all, Republican attorneys general really don't all believe that all state laws must be defended; recall that some Republican attorneys general have refused to defend state domestic partnership registry laws and gun control measures. (210) Relatedly, we suspect that if a large number of Republican attorneys general stopped defending affirmative action plans or campaign finance laws, some Democratic attorneys general might vigorously criticize the nondefenses. Because Democratic and Republican politicians often seek to distance themselves from the opposite party by embracing polarizing policies, (211) we expect that Republican and Democratic attorneys general will continue to refuse to defend laws that frustrate their party's diverging agendas.

   For earlier attorneys general, seeking political gain by appealing to partisans in their party was often fraught with difficulty. Before party polarization created an ideological divide, Democrats and Republicans were strewn across the spectrum. (212) In that...