“Presidents are selected, not elected.”

President Franklin D. Roosevelt (FDR)

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“If you are as happy in entering the White House as I shall feel on returning [home], you are a happy man indeed.”

Outgoing President James Buchanan to Incoming President Abraham Lincoln (March 4, 1861)

Last weekend’s three-day holiday, including President’s Day on Monday, Feb. 20, honors the 45 men (one twice, Grover Cleveland) who have served as the country’s chief executive. In the first two centuries of the nation’s existence, it consisted of many lawyers from varied parties, Federalist, Democrats, and Republicans, but no Whigs.

Since then, however, the number of commanders-in-chief who have been learned in the law, as the saying goes, have been much fewer, confined to Democrats; Bill Clinton, Barack Obama, and now Joe Biden. The Republicans elected since the nation’s Bicentennial in 1976 have all been non-lawyers: Ronald Reagan, the two Bush’s, and Donald Trump. Overall, of the 45 men (no women, yet) who have held the presidency, a dozen, about 28%, have been lawyers.

But, in contrast, the number of attorneys who have held the counterpart position in Minnesota during the past four-plus decades have been few and far between, like one, Tim Pawlenty, from 2003 to 2010. None of the others elected since that time have been attorneys: Rudy Perpich, elected when Wendell Anderson, an attorney, resigned and effectively appointed himself to the Senate; followed by Arne Carlson, the state auditor; Jesse Ventura, most notably a professional wrestler, among other trades and traits; Mark Dayton, a business scion; and now Tim Waltz, an ex-teacher. They came from all three parties: GOP, Democrat, and Ventura’s short-lived Reform Party. Despite their part affiliation, one feature was common: absence of a law degrees.

But the relative paucity of attorneys in the White House in the nation’s capital and practically none in the governor’s mansion here on Summit Avenue in St. Paul does not mean that lawyers have not tried to reach those abodes.

Four fall

Marshall H. Tanick

Since the Bicentennial, 47 years ago, four nominated lawyers, three Democrats and one Republican, have fallen short — some by wide margins, others more narrowly — in their bids for the White House: Minnesota’s Walter Mondale in 1984; Michael Dukakis a few years later; Bob Dole in 1996; John Kerry (along with attorney running mate John Edwards) in 2004; and Hillary Clinton in 2016 (also with an attorney running mate, Tim Kaine). The Democratic nominees had the Republicans outnumbered by law degrees, but not by electoral votes.

One other Minnesota lawyer failed on numerous occasions to obtain his party’s nomination for the White House: Harold Stassen, the pre-World War II youthful Republican governor, who was a perennially unsuccessful White House aspirant for multiple decades after the war.

A few of the presidential lawyers continued to participate in litigation after they left the White House. John Quincy Adams was winning counsel for the mutinous slaves in the famous Amistad case. U.S. v. Schooner Amistad, 40 U.S. 518 (1841), as brilliantly described in the highly acclaimed Steven Spielberg 1997 movie “Amistad.”

Although not an attorney himself, Theodore Roosevelt was a post-Oval Office litigant in a high-profile defamation lawsuit brought against him by a New York politician in Barnes v. Roosevelt, a case that T.R. prevailed in after 40 hours of deliberations by a Syracuse jury.

Roosevelt’s successor, William Howard Taft, a federal appellate court judge before his presidency, served as chief justice of the Supreme Court for the decade of the “Roaring ’20s,” 1921-1930, remarking that “presidents come and go, but the Supreme Court is forever.”

Richard Nixon also had Supreme Court experience, both before and during his presidency. He represented the Hill family in the Hill v. Time, Inc. case, 375 U.S. 374 (1967), losing a narrowly decided 5-4 decision against his right-of-privacy claim, a defeat he characteristically blamed on the media’s distaste for him and the judicial antipathy toward him. His role as a litigant occurred in an effort to keep his covert Watergate tapes secret, which was rebuffed by the high court seven years later in U.S. v. Nixon, 418 U.S. 683 (1974). The last nail on the coffin of his presidency from which he resigned less than two weeks later.

Nixon’s legal entanglements, which continued in various formats and forums long into his post-presidency, pale in significance, or at least volume, compared to the most recent White House occupant, former President Donald Trump, a non-lawyer who has been plagued by litigation of multiple civil and criminal proceedings. See Perspectives, “President in prison? Debs tried in 1920” in the Feb. 9, 2023, edition of Minnesota Lawyer.

Meanwhile, Minnesota

Meanwhile, in Minnesota during that identical 47-year span, losing lawyers have littered the gubernatorial landscape: three Republicans: Norm Coleman (subsequently senator, more on that later); Tom Emmer (subsequently elected to the House of Representatives, more about him later, too); and Jeff Johnson, twice; along with two Democrats, Attorneys General “Skip” Humphrey and Mike Hatch.

Two of them, Republicans Coleman and Emmer, suffered narrow losses. Coleman as incumbent senator, was narrowly defeated by 312 votes in a recount to Al Franken in 2008, which was confirmed by the state Supreme Court in Coleman v. Franken, 767 N.W.2d 453 (2009), rejecting a challenge to absentee ballot courting. See “Franken v. Coleman: revisiting ‘Bush v. Gore, maybe” in the May 4, 2009, edition of Minnesota Lawyer. Emmer lost by a healthier 8,770 votes to Dayton in 2010, which precipitated a short recount effort before he conceded defeat.

Both recounts recalled an earlier gubernatorial post-election litigation between two non-lawyers in 1962 when DFLer Karl Rolvaag ousted GOP incumbent Elmer Anderson by a scant 91 votes. See Perspectives, “Election recalls close encounters here” in the Jan. 11, 2021, edition of Minnesota Lawyer.

So, as the dust settles on the President’s Day, the 53rd time it has been held since its official recognition by President Richard Nixon, a lawyer, in 1971, following its deferred congressional enactment three years earlier, a consolidation and expansion of Abraham Lincoln’s birthday (Feb. 12) and George Washington’s (Feb. 22). Two other Presidents also have February birthdays neither of them lawyers, William Henry Harrison and Ronald Reagan. It’s clear that lawyers are not as prominent in presidential politicians as they once were, and a law degree is hardly a prevailing characteristic in the gubernatorial office at all.

The declining roles and stark disparity between attorneys in the White House and, at least in recent times, scarcity of them as governors here, reflect interesting patterns that evoke explanations that are as complicated as the 45 individuals who are honored on the day set aside to honor those men who have led this nation.

PERSPECTIVES POINTERS

Some Presidential Primary Occupations