Political Ideologies and the Legal Profession

If you haven’t noticed by now, there’s a Federal election going on. How and where to Canadian lawyers fit into this equation?

A new study in the Journal of Legal Analysis examines the political leanings of American lawyers by using the Database on Ideology, Money in Politics, and Elections (DIME) to track the financial contributions of lawyers to political campaigns. The contributions were then matched using an algorithm to lawyers listed in the Martindale-Hubbell Legal Directory. The result was a “CFscore” to identify the political leanings of the contributor, who could be identified based on their position the legal system.

The authors came across a number of interesting findings:

• lawyers generally lean left politically, but only moderately so
• female lawyers tend to be more liberal than male lawyers
• law professors are more liberal than the profession generally
• being a partner in a firm means you’re more likely to be conservative

The left-leaning effect of lawyers generally held true regardless of firm size (with government lawyers and sole practitioners further left than big law). Where important distinctions were found was in practice areas.

Public defenders lean far to the left, with very few conservatives. Prosecutors are still liberal, and are more liberal than lawyers overall. Greater distinctions were found in the areas of oil & gas, mergers & acquisitions, energy, and personal injury defence work, all of whom lean further to the right.

No comparable information is available to my knowledge about Canadian lawyers, but we do have some indication about where their opinions on high profile justice issues stand.

At the last Canadian Bar Association (CBA) Council Meeting in Calgary, nearly every single resolution was focused on opposition to policies by the current Federal government. Some members of the legal media attempted to suggest at the conference that the CBA may be a politically partisan organization.

My response was that many members of the CBA and the bar generally were Conservative Party of Canada members, and their position on justice issues were ones of principle, not political ideology. These resolutions are intended to help government make better decisions, not routinely oppose them to score political points.

A review of CBA resolutions prior to 2006 demonstrates that critique of Federal policies has always been a role of the organization, irrespective of the party in office. Canadian lawyers, who likely do lean more left than right as well, inform their positions on justice issues through their own education and experiences. The only distinction today may be the sheer volume of opposition to the current government’s stance to justice, and that might be explained by a disdain for evidence-based policy making.

The bench is also not immune from ideology. The National Post described the current tensions between the Federal government and the Supreme Court as follows:

“Governments have always suffered defeat at the hands of the court,” says Emmett Macfarlane, a political scientist at the University of Waterloo who specializes in the role of the top court. “What is unique about the Conservative government is that there have been a string of highly salient losses in two areas.”

One is the Conservative Party’s law and order agenda, often in the case of criminal appeals. The other is institutional reform, such as the recent ruling against Senate term limits and elections, which Harper criticized as enforcing an unworkable status quo. It also torpedoed a long-standing Tory platform plank.

All this has solidified an image of the court as the government’s nemesis, with McLachlin as its fearless, indomitable leader. In this majority government, she sometimes seems like leader of the opposition.

The Chief Justice has rejected this characterization, and explains this dialogue as part of a healthy democracy. One of the key election issues for Canadian lawyers appears to be the government’s relationship with the courts.

Garry Wise has been highly critical of the current approach,

We have seen a disturbing record of confrontation and contempt by the Harper government for the judiciary and the Supreme Court of Canada in particular.

One can only hope, with a change of government, for the restoration of a modicum of respect and decorum by the [prime minister’s office] and government for the judicial branch.

Geoff Pollock, who ran for the Conservatives in 2013, said that this conflict has been highly exaggerated.

Either way, the consensus seems to be that lawyers want their government to get along with the courts, even while they vigorously advocate within them.