The New York Times reports that a report by the Department of Justice Inspector General has revealed that hiring for the Honors Program began cutting first level applicants based on political and ideological affiliations.
“Many qualified candidates” were rejected for the department’s honors program because of what was perceived as a liberal bias, the report found. Those practices, the report concluded, “constituted misconduct and also violated the department’s policies and civil service law that prohibit discrimination in hiring based on political or ideological affiliations.”
According to the report, it started under Attorney General John Ashcroft in 2002, and picked up steam under Alberto Gonzalez in 2006.
Applications that contained what were seen as “leftist commentary” or “buzz words” like environmental and social justice were often grounds for rejecting applicants, according to e-mails reviewed by the inspector general’s office. Membership in liberal organizations like the American Constitution Society,Greenpeace, or the Poverty and Race Research Action Council were also seen as negative marks.
Affiliation with the Federalist Society, a prominent conservative group, was viewed positively.
The issue arises out of the foundational belief that career attorneys, the ones who serve regardless of which political party owns the White House at any given time, should be hired, retained and promoted on merit rather than ideological devotion. Political appointees, on the other hand, are supposed to be political and similarly expected to pack their bags and go home at the end of their rabbi’s term, to be replaced by the next crop of political appointees.
But is this really a scandal? When Orin Kerr applied for (and was accepted) to the DOJ Honors Program during the Clinton Administration in 1997, the vetting was hardly as overt as the Inspector General’s report says. On the other hand, Orin suggests that it wasn’t as pure as driven snow either:
Although I’m not aware of anything like this happening during the Clinton years, I doubt politics was entirely irrelevant to hiring at the time. When I applied to the Honors Program in the fall of 1997 (and was accepted), it was generally understood among conservative/libertarian applicants that being conservative/libertarian was a negative on a DOJ Honors Program application. It wasn’t necessarily an automatic ding, except of course at the Civil Rights Division. But it was a negative in an intensely competitive process. As a result, it was common not to list extracurricular activities that signaled conservative/libertarian viewpoints and that were the kind of thing that an applicant might or might not list on a resume depending on the job. I followed that practice in my case. I remember thinking at the time that I wouldn’t have gotten the job otherwise.
It would come as no surprise that hiring decisions by any agency of the Executive Branch of government would involve some element of political or ideological bias. Nor does this strike me as inherently wrong. When a party’s candidate for President takes office, part of the baggage he brings with him is the belief that his ideological position is right. It’s natural that he (and his political appointees) would view those who share his ideology are similarly right. Why wouldn’t they favor applicants who are right over those who are wrong?
This is particularly true for DOJ applicants. Part of the job of a Justice attorney is to exercise discretion, and it makes perfect sense that hiring decision would include an expectation that discretion will be consistent with the guiding philosophy of those in charge. No sane person hires someone to make decisions based upon a philosophy inconsistent with vision of right and wrong.
But the difference here was that the DOJ used such things as club membership and “buzz words” to make their first level cuts. Put the American Constitution Society on your application, and you were assured that it would sail straight through to the circular file.
It’s simplistic practice. It’s poor management. And it’s too flagrant. But it’s not shocking, given the overly politicized nature of Washington practice. Given the ideological divisions of America over this period, which were as close to open warfare as this country has seen since the Vietnam War era, should we have expected any less?
Perhaps this report will prove sufficiently embarrassing that future administrations will limit their ideological input into career attorney hiring to the basics: qualifications and sound discretion. It will likely never be entirely devoid of ideological influence, but at least it won’t be so flagrant. But to expect the political appointees (and their minions) to rise above political or ideological influence entirely is unrealistic.
Sound discretion, by definition, has an ideological component of what’s right and wrong. So think about this when you vote.