On lawyers and leadership in government: lessons from "America's advocate," Robert H. Jackson.

Author:Garre, Gregory G.
Position:2017 Stanford Law Review Symposium; Raising the Bar: Lawyers and Leadership

Lawyers serve in critical positions across the federal government. But lawyers play a special role at the Department of Justice, which is foremost charged with enforcing the laws on behalf of the President and representing the government in court. Naturally, it is lawyers who assume leadership roles at the Department. (1)

This can present a challenge. After all, there is no West Point for lawyers. They do not teach leadership in law school, or at least they did not when I attended. And, as many who have worked in a law firm can attest, lawyers are not necessarily born leaders. Fortunately, however, the Department of Justice has been blessed at all levels with many effective, and even some great, leaders.

Few stand out like Robert H. Jackson. Jackson came to Washington, D.C. in 1934 at the age of forty-one to serve in the Roosevelt Administration after making his mark as a country lawyer in western New York. (2) His rise was meteoric. After two years as general counsel to the Bureau of Internal Revenue, Jackson moved to the Department of Justice. (3) There, he served as an Assistant Attorney General, Solicitor General, and Attorney General before the President put him on the Supreme Court--where, of course, he distinguished himself again. (4)

I served in the Department of Justice more than sixty years after Jackson's departure, but his presence was still palpable. From the Attorney General down, the confirmed heads of the various components within the Department are allowed to pick a portrait of a former Department official to hang in their office. Jackson's portrait was invariably a top draft pick and so typically hung prominently in the offices of the Attorney General and other top Department officials. (5) In the Solicitor General's Office, in particular, Jackson was still a model of excellence to which all lawyers aspired.

Respect and admiration for Jackson transcended party politics. Jackson was a liberal Democrat--an ardent New Dealer, no less (though, as will be seen, Jackson's legacy is far more complex). Yet even in the Republican administration in which I served decades after Jackson's death, he was regarded as an exemplary leader. That is a rare feat in these days of hyperpartisanship.

In thinking about lawyers and leadership in government, it seems fitting to look to Jackson for guidance.

First, a bit more on Jackson's remarkable story. Born in 1892, Jackson grew up in Frewsburg, New York, a small town in the southwestern corner of the state. Apart from one year of law school--at Albany, not Harvard--his formal education ended with high school. He learned law by "reading it" while working as an apprentice in his cousin's law office. (6) He was one of the last Justices appointed to the Supreme Court without a law degree. (7)

After he passed the bar in 1913, Jackson practiced in Jamestown, New York for twenty years, during which time he developed a reputation as a gifted advocate and maintained a robust country law practice that he relished. (8)

In 1934, Henry Morgenthau, the Secretary of the Treasury and a fellow New Yorker, lured Jackson to Washington to serve as general counsel to the Bureau of Internal Revenue. In one of his first meetings with his new staff, Jackson confessed that he thought "government service was a place where all matters met with interminable delay" and "where the character of the service ... was of doubtful competency and indifferent character." (9)

This is hardly the conventional way to win over the hearts and minds of one's new government colleagues. Yet Jackson quickly added that, after just a few weeks on the job, he had learned he was wrong. And he was "fully conscious," as Jackson put it, that he could not succeed without "the cordial support of the entire staff' (10)--which he promptly earned.

Jackson's natural disposition no doubt helped break the ice. Those who knew him described him as "a friendly-looking man," with a "broad" face and an "incipient twinkle" in his eye. (11) True to his country roots, he was also a "reserved man," "modest in manner." (12) Yet he was no pushover. He was "supremely confident of himself and his judgment" and "had a calm which no crisis could disturb." (13)

After two years at the Bureau of Internal Revenue, Jackson moved to the Justice Department, where he became the Assistant Attorney General for the Tax Division. (14) About a year later, he took charge of the Antitrust Division, where he served for another year and a half. (15)

It is here where Jackson began to distinguish himself as a Supreme Court advocate. Even before becoming Solicitor General, he argued fourteen cases, including some of the early constitutional challenges to New Deal regulations. (16) This was back in the day when the Supreme Court was taking upwards of 150 cases per term, more than twice its current caseload, so there were plenty of arguments to go around. (17)

In 1938, the Solicitor General's job opened up. Jackson, who had already earned his stripes as an advocate, was not only a natural choice but was also eager to fill the spot. As he remarked shortly after his nomination, it was "probably the only office every lawyer happy in the work of his profession covets." (18) He later explained that the job was "one of the few in government where one's energies may be devoted to the philosophy of the law, and to court room advocacy, without having [one's] mind constantly littered with administrative detail." (19)

Many lawyers, including those who have been fortunate enough to serve as Solicitor General, still view Jackson as a prototypical "SG." And yet he held the position for only a year and ten months before he was promoted again.

Colleagues described Jackson's presentation as the government's top advocate as "quiet, secure, confident, and disarmingly straightforward"; "dramatic only in spots'"; and "dignified but not high-hat." (20) Though he had a "gift of phrase," his style was to get "straight to the point" of a matter. (21) Even as his stature rose, Jackson was ever cognizant that "what impresses the Court is a lawyer's argument, not his eminence." (22) Jackson earned the Court's trust with his candor, not flair. (23)

Jackson loved his craft. That was clear to those who worked with him in the Solicitor General's Office and saw him argue before the Court. And it comes through in his writing. As a Justice, Jackson once observed:

As I view the procession of lawyers who pass before the Supreme Court, I often am reminded of an old parable. Once upon a time three stone masons were asked, one after the other, what they were doing. The first, without looking up, answered, "Earning my living." The second replied, "I am shaping this stone to pattern." The third lifted his eyes and said, "I am building a Cathedral." So it is with the men of the law at labor before the Court. (24) Jackson, by all accounts, built cathedrals. (25)

Jackson described his tenure as Solicitor General as "the most enjoyable period of [his] whole official life" and said that the job offered the "greatest professional opportunity and intellectual satisfaction of any in all the Government." (26) It was there that Jackson could be a lawyer. As he put it, "[t]he work was purely professional. The office was removed from political activity by tradition and from the fact that it was regarded as an adjunct of the Supreme Court." (27)

He was a natural--so good that Justice Louis Brandeis proclaimed that Jackson should be "Solicitor General for life." (28) But Jackson could not stay put. In 1940, President Roosevelt elevated Jackson--then forty-seven years old--to Attorney General, a position he held for a year and a half. Yet that did not stop him from visiting One First Street. As Attorney General, Jackson argued three cases before the Court. (29)

In 1941, with nowhere else to rise at the Justice Department, Jackson was appointed to the Supreme Court. There he served with great distinction as an Associate Justice for more than a decade, authoring opinions (30) and phrases (31) that to this day rank among the Court's most memorable and important.

As Chief Justice Roberts has observed, many of Justice Jackson's decisions "are, and will continue to be, lodestars of American jurisprudence." (32) His predecessor likewise described Justice Jackson's concurrence in the Steel Seizure case as close to being a '"state paper' of the same order as the best of the Federalist Papers, or of John Marshall's opinions for the Court in the early part of the nineteenth century." (33) That is rarified air. (34)

Yet Jackson was not done. In 1945, he took a leave of absence from the Court to serve as the United States' prosecutor at the Nuremberg war crimes trial--a post that earned him the moniker "America's advocate." (35) Jackson called the prosecution "the most important, enduring, and constructive work of [his] life." (36) An advocate again, Jackson had not lost a step. His opening statement at Nuremberg is regarded as one of the "most powerful" ever made in a courtroom. (37)

Jackson died in 1954 at the age of sixty-two, just twenty years after he first arrived in Washington. President Eisenhower--who first met Jackson in Europe during the war crimes trials--immediately telegrammed Irene Jackson, the Justice's widow, to say that "[a]ll America [would] mourn" his passing and to praise Jackson's "exceptional legal talents and devotion to the public good." (38)

Jackson's rise is the stuff of legends, for lawyers at least. He was not only an outstanding public servant--arguably, one of America's finest--but also a great leader. Looking back at his career, a number of traits stand out. While it may be impossible to replicate Jackson's success, steering by these guideposts almost certainly will strengthen one's capacity for leadership in government.

Respect for the breadth--and limits--of federal power. Jackson appreciated not only the beneficial uses of federal power but also the potential for abuse. As the...

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