Should Ideology Play any Role in Hiring for DOJ Career Positions?:
A lot of recent news stories echo the claim that the Bush Administration has improperly politicized hiring of career lawyers at the Justice Department (DOJ). There's an interesting question lurking in these stories: Should a lawyer's views of public policy play any role in whether they are hired? And specifically, if an attorney is applying for a position enforcing a politically controversial set of laws, should the attorney's view about those laws enter into whether they should be hired for a career lawyer slot?

  At first blush, it's easy to say the answer is "no, those views should never matter." And perhaps that's the right answer. But I think there are actually some interesting issues lurking here, and I wanted to offer a hypothetical that I hope will illustrate them.

  Imagine that DOJ has two openings for entry-level career lawyers. The first opening is in the Criminal Division's Child Exploitation and Obscenity Section, for a position prosecuting obscenity cases. The second opening is in the Civil Rights Division's Voting Section, for a position bringing civil suits against states and counties for racial discrimination in the operation of their elections.

  There are three equally-well-credentialed applicants for the two positions. The first is Connie the Conservative, a very conservative young lawyer who was President of the BYU Federalist Society. Connie clerked for Judge O'Scannlain on the Ninth Circuit and is now at the conservative-leaning DC office of Kirkland & Ellis. The second candidate is Moe the Moderate, a completely nonpolitical mushy middle-of-the-roader. After graduating from Penn and clerking for Judge Prado on the Fifth Circuit, Moe has been working at a large litigation firm in Philadelphia. The third candidate is Libby the Liberal, a very liberal young lawyer who was very active in the NYU chapter of the ACLU. After clerking for Judge Reinhardt on the Ninth Circuit, Libby has spent the last few years working at the liberal-leaning San Franscisco office of Morrison & Foerster.

  During the interviews for the two positions, both Connie the Conservative and Libby the Liberal made their personal views clearly known. In the interview for the position as an obscenity prosecutor, Connie the Conservative expressed enthusiasm for bringing more obscenity cases. "I'm deeply worried about preserving traditional values in America," she explained. "I think your work is extremely important." Libby the Liberal took the opposite view. "To be honest, I don't think the government has any role trying to stop adult pornography," she explained. "I'll work on these cases if it's my job, but I basically think this section should be shut down and you should go after some real criminals instead." Moe the Moderate was more reserved, indicating that he didn't have strong feelings about the work of the section either way.

  The roles reversed themselves in the interview with the Civil Rights Division's Voting Section. Libby the Liberal expressed great enthusiasm for the Voting Section's traditional priorities. "I went to law school to fight injustice, and I think your work is incredibly important." Connie the Conservative took the opposite view: "To be honest, I don't think this section's traditional work is needed in this day and age. I'll work on these cases if I have to, but I basically think this section of the Civil Rights Division should be shut down." Once again, Moe the Moderate was more reserved, indicating that he didn't have strong feelings about the work of the section either way.

  So imagine you're in charge of hiring at the Justice Department. Who should be offered a job for what slot in what order? Should you favor Libby the Liberal over Connie the Conservative for the Civil Rights Division job? Should you favor Connie the Conservative over Libby the Liberal for the opening in the obscenity section? Does it depend on what the President's priorities are, and in particular what the President's views are about obscenity prosecutions and the traditonal work of this section of the Civil Rights Division?

  Broadly speaking, should the candidate's views — views that I think on most scales register as more-or-less "political" — make any difference as to whether they should be the one offered the job?

  (Oh, and I should add, any similiarities between the characters here and those existing in real life are purely coincidental. Void where prohibited.)

  UPDATE: I have amended the title of the post to make clear that the question is the candidate's ideological views rather than partisan political affiliation. Hiriring on the basis of partisan affiliation is illegal, and I think we all recognize the harm of it; that was not intended to be within the scope of the question.

Related Posts (on one page):

  1. Speech/Ideology as Evidence of Likely Job Performance:
  2. Should Ideology Play any Role in Hiring for DOJ Career Positions?:
I doubt anyone would disagree (well, this is the VC, someone always disagrees) with the notion that a commitment to the office's goals is an important job-related qualification.

But this hypothetical bears very little resemblance to what happened in the real world, where the question was not "do you subscribe to the philosophical goals of this office?" but "do you belong to the Federalist Society?" and "have you ever cheated on your wife?" In other words, partisan and ideological self-identifiers were used as a proxy to determine if the applicant is likely to "fit in."

You've basically trivialized the issue down to the level of "should you hire someone for a job that they don't believe ought to exist?" (Somehow, I'm reminded of John Bolton at the UN.) I don't think this is an accurate descriptor for most jobs within the DOJ; both liberals and conservatives can be quite passionate about voting rights issues, for example, although they may often argue for different priorities. (And I think that kind of intra-office disagreement is very healthy.)
6.15.2007 3:40pm
George Weiss (mail):
i dont think that connie or libbys views should be viewd in the positive...but only (perhapps) in the negative

if the justice department thinks the views are so strong that they will boch the case by being overzealous (think nifong) or just ignoring an important violation (connie or libby uses ther 'descretion' to ignore a major crime)..then they should play a role..just like any other character issue (not hiring people who have drug major drug convictions and the like)
6.15.2007 3:41pm
Ha Ha (mail):
That's a new one: Libby the Liberal. Poor Scooter. In addition to jail time he has to suffer this libel.
6.15.2007 3:43pm
Anderson (mail) (www):
Good question, and I think the answer may lie in a distinction between "partisan" and "political."

Hiring Connie for the obscenity section, or Libby for the CRD job, makes sense because of their politics, not because of which party they belong to.

OTOH, assuming that membership in the Federalist Society or the Republican Party makes Connie a good fit, or that Libby's being a Card-Carrying Member of the ACLU makes her a good fit, is partisan.

Classic example: the notorious interviews for the CPA in Iraq, where prospective employees were asked their opinions as to whether Roe v. Wade was correctly decided. That's partisan.
6.15.2007 3:44pm
I've never worked for the DOJ. But I would have assumed the sort of ideological selection Orin is referring to -- where the candidates have equivalent credentials and ideology is directly relevant to the subject area of the position -- has always taken place. My understanding was that the Bush administrations were hiring people with lower qualifications for positions where ideology was not directly relevant. Am I wrong?
6.15.2007 3:44pm
I am the only one thinking, "I wouldn't hire Moe for anything"?

If I were a prosecutor considering going after some citizen for acts that someone I trusted and respected (enough to hire) did not even think was a crime, I would definitely think twice. Given that, it might be worthwhile to have such a person around and I might be tempted to hire him or her to function as a memento mori.

On the other hand, it's always energizing to work with an enthusiast.

But Moe? I just want to drown him.

(Parenthetically, and perhaps this is just my libertarianess showing through, don't prosecutors feel uneasy sending people to prison for acts that vast swaths of the population actually approve of?)
6.15.2007 3:48pm
The person who says "I'll do this if I have to, but I won't like it" should lose in either case. We don't have enough information to choose between the remaining two candidates.

It shouldn't matter who is in office or what his priorities are, if these are career positions and not political appointments. That's the whole point of a professional civil service, in which administrations come and go, departments gets reorganized, and employees are expected to adapt and manage their own careers accordingly.
6.15.2007 3:49pm
Erasmus (mail):
Ironically enough, I used to work for a firm that is considered a like-minded firm in the same city as one of the firm's you mentioned and will be clerking for one of the judges you also listed, although neither one is in the same political mold.

I don't think your hypo makes much of a point. Perhaps there are a small number of cases where it would make sense to take "political opinions" into consideration. Perhaps your hypo is such a case. But those cases are rare -- things are obviously not as cut and dry in real life. (Why would anyone want to work in a division that he thinks shouldn't be in existence?) And given that those cases are rare, I don't see any reason to change the policy unless you think there are little benefits to having a political diverse DOJ.

I think any law-related job without political diversity is doing a disservice to its client. You want different points of view tackling any problem -- and that is particularly true with legal issues, which generally have inherent policy undertones. I also think the public would have less faith in a justice department that was hiring only liberals or only conservatives. It would not only have the appearance of corruption, it wouldn't surprise me if it actually eventually became corrupt.
6.15.2007 3:49pm
Ella (www):
On the facts as presented, I think the answer is obvious. If a lawyer who is trying to get someone to hire them can't manufacture enough enthusiasm to convince the interviewer that they really want the job, how convincing will they be when they're DOING the job? I think it's very appropriate that Libby get the Civil Rights job and Connie get the obscenity job. Committment to the mission matters.

It would be a more interesting (and more realistic) question if all three exhibited equal enthusiasm/interest in each job and the hiring staff had to look at their backgrounds for evidence of their commitment/interest/ expertise. I'd still say the one who had demonstrated the most committment to the respective missions of the offices should get the edge. It gets tougher if they weren't essentially equally qualified attorneys - if, for instance, Libby had undistinguished, but respectable, academic or professional credentials, but had done a lot of work in civil rights law and had great reccomendations from his colleagues in that area.

The issue, to me, is not so much that political leanings are considered - they matter and it's part of the privilege of the guy who wins the election to give that some weight. If a candidate has political opinions that support the agency's current priorities and that tips the scales in his favor, I see no problem. It's when the thumb on the scales becomes a ten pound weight, so that people with better qualifications are discarded in favor of mediocre candidates, that a problem arises.
6.15.2007 4:02pm
Lack of enthusiasm for enforcing the agency's -- or a subdivision of the agency's -- mission is not a bug, it's a feature. At least at the policy-making levels. That's why they're appointed in the first place. As far as the staff lawyers are concerned, having worked under 5 different attorneys general myself, I doubt it matters much.
6.15.2007 4:02pm
baclaw (mail):
I can understand why it may appear to be desirable to hire someone who is more philosophically committed to the mission of a particular division within the DOJ into that particular division. That person, presumably, will pursue people who are perceived to be in violation of the laws that division enforces with more gusto than someone less philospohically committed to the mission of that division. However, that is only an assumption -- and we all know what happens when you assume things.

I believe that these sorts of career positions should stay de-politicized. After all, the mission of a particular division may change over time given different legislation and administrations. Thus, hiring someone because of their commitment to particular mission may backfire in the end.

Furthermore, what evidence is there that someone who is not naturally aligned with the mission of a particular division in the DOJ does a poor job of actually carrying out that mission? Is there any evidence that criminal defense lawyers who were former prosecutors do a worse job at one than the other? Is it impossible to be both an adequate plaintiff's attorney and insurance defense attorney?

Right now, I see no benefit to using political considerations to fill career positions within the DOJ and a clear opportunity for abuse if these kinds of issues are taken into account.
6.15.2007 4:03pm
ATL (mail) (www):
I guess it's the blogger's prerogative to frame the argument, but Steve hits the nail on the head:

But this hypothetical bears very little resemblance to what happened in the real world, where the question was not "do you subscribe to the philosophical goals of this office?" but "do you belong to the Federalist Society?" and "have you ever cheated on your wife?" In other words, partisan and ideological self-identifiers were used as a proxy to determine if the applicant is likely to "fit in."

You've basically trivialized the issue down to the level of "should you hire someone for a job that they don't believe ought to exist?"

For shame, Professor Kerr. If you're going to do it, be better at it.
6.15.2007 4:04pm
Dan Hamilton:
Who is doing the hiring?

A political appointee or a career civil servant?

A Career civil servant will put Libby in the obscenity section and hire Moe for the CRD job. Connie would NEVER fit in with Civil Servant people. And Libby will help close down the obscenity section.

Political appointee. If Democrat will hire like the CCS above. If Republican he will offer the both jobs to Moe, Libby then Connie because he doesn't want to appear partisan. If he hires Connie over the others the Press will screem partisan hiring no matter what.
6.15.2007 4:07pm
Seamus (mail):
What Anderson said. My views may be pretty close to those of Connie Conservative, but since I'm more likely to give money to and work for the election of candidates like Michael Peroutka than like George W. Bush, I presume I can kiss goodbye any chance of getting hired by the DOJ in this administration.
6.15.2007 4:11pm
JosephSlater (mail):
I think AF had it right. It's entirely understandable if the DoJ, given a choice among essentially equally-qualified folks (in the sense of traditional credentials that signal ability to do the job), would pick folks most "on board" with the program and priorities of the political leadership.

But as AF says, the entirely deserved criticism of the Bush administration is that in any number of positions, throughout the government -- from "Brownie" to summer jobs at the DoJ, to the folks doing reconstruction in Iraq who were asked about their position on abortion -- it has routinely chosen less qualified people soley because of their loyalty and/or ideology. Thus, overall competence has suffered, and some jobs have become politicized beyond where reasonable folks would be comfortable.

And this isn't an accident. The Heritage Foundation issued a big report after W was elected the first time that explicitly called for loyalty to be prized over qualifications.
6.15.2007 4:13pm
Steve, ATL:

I'm afraid you're missing the point. It goes without saying that political questions entirely unrelated to the job are completely inappropriate. I'm not trivializing that point: Rather, I think it so totally obvious that it need not be mentioned. The point is that there are some circumstances in which political questions actually are related to the job; the interesting question is how to deal with these circumstances. You can deny these circumstances exist, or you may not want to hear about them, but that's the topic of this post.
6.15.2007 4:14pm
What actually happens is that politics always influences government departments.

Career employees act according to their politics. And political appointees act according to theirs. The question is how often and how to minimize the effects.

Most decisions don't have a clear political angle so politics doesn't matter. In some others the facts and/or laws are so clear that politics has no effect.

I tend to favor strong control by politcal appointees rather than strong civil service protection simply because appointees can be removed or corrected more easily.

Administrations change - a process called elections - but if the career service has all the power does that matter?
6.15.2007 4:16pm
This hypothetical is so far removed from what happened that the post really does a disservive to the discussion about what has happened in the DOJ in the last 3 or 4 years.

The reality is that the DOJ has been hiring less-qualified applicants for career positions in sections in both the Civil and Criminal Divisions. For example, Bradley Schlozman, in the Civil Rights Division, transfered female minority lawyers from the appellate section and replacing them with what he called "Good Americans" -- an allegation he did not dispute in his Senate testimony.

Schlozman and company weren't concerend about "policy preferences." They were serving the GOP's interests. Maybe Orin should spend a bit more time worrying about the effect that is going to have on our justice system than creating silly hypotheticals with little relevance to what's actually occurring.
6.15.2007 4:17pm
uh clem (mail):

Please distinguish between political/philosophical outlook and partisan activity on behalf of a particular party. Then re-cast the question. Thanks.
6.15.2007 4:18pm
Why, uc_clem? That hypothetical is too easy; I'm interested in the harder one.
6.15.2007 4:21pm
Your hypothetical is nice and all, but all it really establishes is that you should consider how enthusiastic someone would be in their job, especially when its clear that they might exert only token effort. And that such enthusiasm should be a factor even when it is the result of political views. As far as I can tell, however, this isn't something people are actually arguing about, and this has very little relation to anything anyone is alleging happened.

Better to ask whether it's appropriate to systematically screen applicants for factors that you then use to gauge their political views, with an eye to hiring the ones who you think are most likely to agree with you, even if they might not perform their actual job as well. That seems like a real issue.
6.15.2007 4:21pm
martinned (mail) (www):

I think the key question here is about the proper role of attorneys, generally, and DOJ attorneys in particular. In a system that places a lot of reliance on the adversarial approach, as the US system does more than any other, one'd want the fanatics prosecuting in each case. But in most other countries, including my own, attorneys also have an obligation as an officer of the court (in the extreme, the British system goes to great lengths to assure the independence of barristers).

Looking at it from my legal system, I'd want such lawyers to have a balanced view of the law, bringing cases where it is warranted, without having an agenda about what the law should be. (I.e. without looking to expand the scope of the law through aggressive cases at the limit.)
6.15.2007 4:26pm
Ella (www):
Martin - I wouldn't want a fanatic as a prosecutor, and I doubt most people would. I would want someone committed to goals of the law he is charged with enforcing (Libby or Connie, in this case). Committment and even enthusiasm do not equate to fanaticism or aggressively expanding the scope of the law.
6.15.2007 4:30pm
George Weiss (mail):

why dint you use Moe Larry and Currly
6.15.2007 4:32pm
K Beagle:
I'm not sure I even agree with the notion (held by many here) that attorneys will do a crappy job if they don't "believe" in their cause. Certainly, a lawyer does not have to believe in the legalization of marijuana in order to represent defendants accused of drug-related crimes. And I know many very liberal lawyers who defend the interests of Big Oil, Big Pharma, and/or Big Tobacco, even if -- as private citizens -- they probably are not big fans of those industries.

In fact, anyone who has practiced law for any considerable amount of time has probably come across or a case, client, or cause that they really don't care for. But as lawyers, we're trained to put aside our personal/political preferences and zealously represent the interests of the client. Certainly, that should include the client known as the United States.

If any job candidate can't do that, they're probably not very good attorneys to begin with -- regardless of their political stripe.
6.15.2007 4:33pm
I agree with BigPicture. To ask the question of whether a person's politics is ever relevant to their job trivializes what actually happened at DOJ. To put it another way, just as Orin thinks "It goes without saying that political questions entirely unrelated to the job are completely inappropriate" it similarly goes without saying that certain jobs lend themselves to persons with particular ideas or politics.

What happened in DOJ is exactly the opposite of what this post seems to suggest should happen. To answer the question presented, if you are a hiring official in Bush's DOJ, Connie gets the first job, the other two are turned down, and the Department waits for another Connie to fill the second job. Meanwhile, career lawyers in the Civil Rights Division similar to Libby or Moe are reassigned to prosecute immigration cases in order to force them out to be filled by still more Connies.
6.15.2007 4:34pm
Anderson (mail) (www):
I'm not trivializing that point: Rather, I think it so totally obvious that it need not be mentioned.

Would that Monica Goodling had seen it that way.

Anyway, I think my politics/partisan distinction is too confusing.

The post's examples are of policy views, which are traditionally but sometimes wrongly associated with political positions.

So what the post seems to be asking is, "can you take a job applicant's policy views into account, if they're directly relevant to the proposed job?" Which would seem to be answered, "yes, of course."

Why this is not "so totally obvious that it need not be mentioned," perhaps we will see explained in an update to the post.
6.15.2007 4:41pm
PDXLawyer (mail):
Generally, doing what you don't like is demoralizing. If a person's job requires them to prosecute cases in which they think their client's position is unjust, they are a little less likely to be enthusiastic about it. Of course most lawyers learn to deal with this problem to a greater or lesser degree, since an "attorney" is by nature acting in someone else's interest, and required to follow their principal's priorities.

At the extreme, all federal and state jobs have some policy requirements, because all officeholders are required to swear or affirm that they will uphold the Constitution. A person who sincerely believes that the present Constitutional government ought to be violently overthrown (a policy view, fortunately very uncommon in the US today) is ineligible.

As a matter of pure theory, there is nothing wrong with inquiring into policy perferences as a way of finding out if the applicant will find the work congenial. If the Bush administration has a view on the proper application of the law to pornography or civil rights (whether in a specific case or in terms of general policy), the President has a duty to hire people who will expound that view to the courts because he must "take care that the laws be faithfully executed." On the other hand, one key to dealing well with the law is moderation and understanding points of view that are commonly held, even if one does not share them. Political zealots often have trouble with this.

The government must be both energetic and moderate - goals which are naturally in tension. Deciding how to balance this is just one of the jobs of the President (and criticizing that balance is a perfectly legitimate political argument). Are DOJ hires too conservative, or too liberal? Its a perfectly legitimate thing to ask.

"Partisan" hiring seems, to me, to mean hiring people based on their help in getting one elected (or one's co-partisans). Leaving aside the top jobs, this isn't OK. You can't hire for the entry level based on whether or not somebody worked in the campaign. Since political parties in the US are both ideological and campaign orgnizations, asking about political party affiliation could combine asking about policy views (OK) with asking about campaign participation (not OK). For this reason, although it *could* be a proper question, it is probably not wise to ask it.

The Goodling scandalette is an illustration of the dangers of hiring political zealots. Even if she didn't do anything illegal or immoral (that is, even if her reason for asking about party affiliation of potential ALJs was for the proper purpose of determining their policy views) asking the question was stupid, because it could be misinterpreted as asking about campaign participation. If Goodling was a zealot (as she appears to have been) then this danger might not have occurred to her just because she finds it hard to see things from the point of view of administration critics. Zealots are like salt. Good in small doses.
6.15.2007 4:41pm

On the other hand, it's always energizing to work with an enthusiast.
But Moe? I just want to drown him.

I would probably hire Moe, because I realize that enthusiasm for the truth which lies between two sides just doesn't seem as initially exciting... Too bad such fellows often get an undeserved "mushy" monniker despite the potential for insight and better decision-making.
6.15.2007 4:41pm
ATL (mail) (www):
The point is that there are some circumstances in which political questions actually are related to the job; the interesting question is how to deal with these circumstances. You can deny these circumstances exist, or you may not want to hear about them, but that's the topic of this post.

Well, I think you're really concerned now with the answers, not the questions. (In fact, you didn't actually indicate the nature of any questions asked.) And the answers your hypothetical candidates gave, at least the ones calling for the abolition of the very jobs they're interviewing for, are pretty close to unrealistic for a candidate for the positions in question.

So yes, if a candidate I was interviewing called for the abolition of the position she was applying for, it would weigh heavily on my decision to hire her. But such a response
6.15.2007 4:44pm
when politics(ideology?) doesn't enter the picture, you have the situation that exists with many bureaucracies such as State and the DOJ-lack of respect for those actually elected and leaking as a way to argue policy issues. The nameless leakers at State have done plenty of damage based on politics-I would rather the employee be vetted up front than see it on the front page of the NYT.
6.15.2007 4:46pm
former applicant (mail):
Note to posters: law professors hate it when you attack their hypothetical. Your role is to play along with the hypo.

In answer of the question: all three candidates should be viewed equally for the jobs. It is unfair to give the job to a candidate who is enthused about the "mission", since that discriminates in favor of liberals, who are enthused generally about most government programs. (And, conversely, conservatves are more likely to oppose government action.)

In real life, Libby will obviously get offers for all the positions and Connie for none. That the civil service is filled with left wingers doesn't happen by accident.
6.15.2007 4:47pm
I have added an update and amended the title to clarify that the question is ideology rather than party affiliation; my apologies if some were confused by the earlier version.
6.15.2007 4:56pm
Ted Frank (www):
I agree with former applicant. It amazes me that the scandal is that "40% of Civil Rights hires from 2004-2006 were Federalist Society or RNLA members" rather than "0% of Civil Rights hires from 2001-2003 were Federalist Society or RNLA members." If one thinks politics didn't play a role in the latter statistic, they're nuts.
6.15.2007 4:57pm
You're being unfair to Orin's hypothetical here. Saying that "if a candidate I was interviewing called for the abolition of the position she was applying for, it would weigh heavily on my decision to hire her" only answers half the question. What remains is the decision whether or not to favor Libby over Moe for the Voting Rights job because of Libby's political position. Neither of them has called for the abolition of the the position; but one of them has expressed a very strong belief in its importance, and the other has not. Does that matter?
6.15.2007 5:00pm
MikeC&F (mail):
True believers are a menace. They file marginal cases and overzealously prosecute their cases. I am always afraid of people certain they are doing "God's work."

I'd much rather see temperate people hired - at least when we're talking about people hired to wield the prosecutorial sword.
6.15.2007 5:05pm
rarango (mail):
The question is interesting, but don't we all of have "ideologies?" Or at the least values that shape or world view. As one poster noted, I think it is appropriate to consider ideology for political appointments, but less so for civil service positions.
6.15.2007 5:06pm
Where does everyone get the idea that civil service is full of left-wingers? When I have dealt with it, I have found it to be full of former military people. They're not all on the right, of course, but it would be even more of a stretch to say that they are all on the left.
6.15.2007 5:07pm
Anderson (mail) (www):
EMILY LITELLA: ... So, obviously, politics should play *no* role in hiring people for civil service jobs! What has this country come to, that we even have to ask --

PRODUCER (offscreen): The post title's been changed -- it's "ideology," not "politics."

LITELLA: Ideology? Well, that's completely different. Never mind, then.
6.15.2007 5:08pm
The point is that there are some circumstances in which political questions actually are related to the job; the interesting question is how to deal with these circumstances.

I think I addressed this in my earlier comment. My point is that there is a difference between two situations:

1) The interviewee wants to work as an obscenity prosecutor, but thinks the obscenity section should have different priorities than it currently does (maybe he thinks they should go after manufacturers rather than distributors, or something);

2) The interviewee thinks there shouldn't be an obscenity section at all, and that its members should be doing "real" work in some other section.

I don't think a career employee needs to be on board with the job's current priorities, as those vary from administration to administration anyway. So long as they're willing to take orders, obviously.

But I do think we can fairly expect a career employee to at least believe that his/her own job is a legitimate one that ought to exist.

Your hypothetical deals only with issue (2), which is your prerogative, but I think it makes for a very easy case.
6.15.2007 5:15pm
tf- (mail):
i think that libby the liberal should be hired for the obscenity division and connie should be hired for the civil rights division. my reasoning is that government is getting to large in is intruding into all of our lives. by hiring attorneys who dont agree with the work they are doing i think we will ensure that only those cases which 100% should be prosecuted are and the borderline cases arent prosecuted.
this will ensure that only those cases which involve clear and agregious violations of the law are prosecuted and the rest arent
6.15.2007 5:29pm
Orin asks, "[S]hould the candidate's views ... make any difference as to whether they should be the one offered the job?"

Well, Orin, consider the case in which the person hiring for the CRD position happens to agree with Connie's views. So, the person hires Connie for the CRD job.

Is that what you had in mind? Why or why not?
6.15.2007 5:31pm
Edward Swaine:
This may qualify as fighting your hypothetical, but I think it's also the answer. You want to put to one side partisan political affiliation; I take it you also think it's plausible to consider ideology that is completely antagonistic to the position; not clear what you think about priority antagonism.

I think the answer is that there's such a risk that the hiring authority will confuse these unintentionally, or rationalize on a less objectionable ground decisions actually taken on a more objectionable ground, that we should be comfortable with a very broad proscription. The "complete antagonism" types will self-select out at the application phase or not stick around long, perhaps holding out for a political post in which they can really clean house.
6.15.2007 5:32pm
Bart (mail):
As with any job, the ability and willingness to advance the boss' goals is an objective qualification. Ideology fits within that objective qualification.

For example, if the President and AG's goals include prosecuting voter fraud, then you hire subordinates willing and able to prosecute voter fraud and fire those who are not.
6.15.2007 5:45pm
Perhaps a candidate's ideology should not matter, because most career civil servants "go native" sooner rather than later. On the other hand, hiring officials may be less likely to hire someone who expresses strong disapproval for that department's work, so the process of "going native" may itself reflect a certain pre-persuasion in favor of the department's mission among new hires.
6.15.2007 5:47pm
Orin Kerr wrote:
Broadly speaking, should the candidate's views — views that I think on most scales register as more-or-less "political" — make any difference as to whether they should be the one offered the job?
One approach to the question is to look at "flip side", or "mirror image" scenarios.

For example: Would a defense firm specializing in capital crime defense be better served by a new hire who believes that murder shouldn't be a crime? Or by one who believes murder should be a crime but also that a zealous defense of the accused is absolutely necessary for a just outcome?

I think that in practice the latter is generally the case.

Another approach is to broaden the view of consequences from either decision.

For example: To paraphrase a line sometimes attributed to U.S. Grant, "the best way to get rid of an unjust law is to enforce it fully".

That approach would suggest that a prosecutor who believed a law was unjust might choose to prosecute the most egregiously marginal cases, thereby appearing to believe in the law (both to his political overseers and to the public) while actually making the law even more politically unpopular. Vice versa, a prosecutor who believed a law was just and good policy might be careful only to prosecute cases that would garner political support for the law.

So, if I were hiring prosecutors to enforce laws that I really believed in, and wanted to enforce successfully, I'd hire someone for the task who was either moderate in her belief about the law, or someone who actually opposed it.

If I were hiring prosecutors to enforce laws that I really didn't believe in, and wanted repealed, I'd hire those whose beliefs were so strong as to appear nutty to most voters.

Later, after the administration fired me, I'd retire to quiet free market environmental activism, by publishing my political memoirs under the pseudonym Chuang Tzu, thereby driving down remainder bin prices and encouraging paper recycling.
6.15.2007 5:47pm
By the way, what about Moe's brother, Curly the Centrist?

Curly graduated from Columbia where his main activity was Law Review, and he published a note on a civil procedure issue. Like Moe the Moderate, Curly the Centrist is largely "nonpolitical" (eg, he is a registered Independent, has never worked on a political campaign, and joined no student organizations with a notable political or ideological valance).

Curly is clerking for for Judge Garth of the Third Circuit. Inspired by Judge Garth's philosophy, Curly does not believe in "result-oriented" enforcement of the law, but rather the fair application of the law and legal principles and strict adherence to proper procedures and codes of conduct.

Curly is applying for a job after his clerkship, so he hasn't worked anywhere yet. Although young and ambitious, Curly is mature enough to know that he doesn't have all the answers to life and the law yet. Nonetheless, as he makes clear in his DOJ interviews, he believes in the general mission of the DOJ, wants to serve his country, and could see himself spending his entire career at the DOJ. Curly expresses an interest in both jobs while admitting that he only knows the basics of First Amendment and voting rights law respectively (essentially, what he learned by taking a couple relevant classes, clerking, and reading up for his interviews).

Does Curly the Centrist get a job? Or should the DOJ be populated only with the Libbys and Connies of the world?
6.15.2007 5:54pm
Richard Aubrey (mail):
We have elections for a reason, and that is to influence the government.
It would be silly to think voters would vote for someone who is strongly for...something...and not expect he would do what he could within the rules to promote the "something".
If I were strongly anti-obscenity, I would be outraged if the elected official hired a couple of folks from the Larry Flynt School of Law to enforce obscenity law.
If I believed civil rights meant you can't do that to somebody based on race, religion, ethnicity, gender preference, or veteran status, and not that you have to do things for those folks you wouldn't otherwise do, then I'd want a conservative at the desk.
They have tremendous discretion as to what they choose to address and how far they want to take it.
And we have elections for a reason.
6.15.2007 6:01pm
Dave N (mail):
Having never worked for the DOJ--but having worked at a state counterpart, my experience is that people generally apply for the jobs that interest them. As a prosecutor who defends the government in habeas corpus cases, I am rather conservative--but so were those who hired me and even though the elected official was a liberal Democrat.

If I had been interested in areas of law more amenable to my liberal brethren, I would have applied in those divisions instead of where I did--and vice versa.
6.15.2007 6:07pm
anon DOJ lawyer:
Speaking as a current DOJ attorney, and having been on both sides of the hiring process, I am sorry to say that Orin's hypo is both unrepresentative and profoundly incomplete.

It's unrepresentative because extremely few applicants for attorney positions -- I estimate conservatively that I've reviewed 300-400 resumes over my career -- do anything to telegraph their political leanings. Yes, it happens on occasion, but it is very much the exception.

More important, though, is the rigged caricature of Libby the Liberal and Connie the Conservative. You might as well re-cast them as follows:
LIBBY: "I am deeply motivated by a sense of personal outrage at the debasing effect of obscenity on women in American society."

CONNIE: "Government exists to serve the citizens, not the other way around. When a citizen's fundamental exercise of control over government -- casting a vote -- is wrongly thwarted, human dignity is disserved. This isn't Soviet Russia, nor Albania under Enver Hoxha."
One other point: Libby (as hypo'd by Orin) is obviously a bad pick if she opposes the core mission of the unit she has applied to; so, too, with Connie, mutatis mutandis. But Libby's enthusiasm for Civil Rights, and Connie's for going after obscenity, doesn't mean they are right for those jobs, either.

A sensible hiring committee at DOJ isn't looking for mad dogs and dogmatists; it's looking for lawyers smart enough to think an investigation or legal question through from both sides, including the suspect's/defendant's. I've worked alongside former public defenders -- political liberals, so far as anyone could tell -- who brought enormous talent, energy, and insight into their roles at DOJ. I've also seen, via the interview process, examples of both Connie and Libby who scared the crap out of me because they were -- or worse, attempted to pass themselves off as -- zealots.

Thus, Orin's hypo seems to me to be rigged, and rigged in a way that obscures the far more important non-partisan considerations that can and do go into the hiring decisions made around here.
6.15.2007 6:08pm

Our civil service laws also distinguish between political appointees and nonpolitical employees for a reason. You might want to think about that too.
6.15.2007 6:22pm
scote (mail):
How about Connie the Evangelical, Moe the Moderate Jew and Libby the Unitarian? Do you also want to posit that their are legitimate reasons to factor people's religions into the hiring process? The same assertions you invoke involving politics apply equally to religion.

Ot sounds like what you are asking about are corollaries that you think might be predictive of an effective employee for a specific position. You propose that a Federalist Society Member might have the qualities needed to be an effective prosecutor against obcentity. However, what others have clearly pointed out is that the Federalist Society membership isn't what makes the candidate attractive but her acumen, motivation and commitment for the job. It is not necessary to know her political bona fides to ascertain this.

As with all hiring, there questions you can ask and those you can't. Someone's religion might have an actuarial correspondence with certain qualities for a job but surely you aren't proposing vetting people by their religious views????? Likewise, asking their political leanings is equally impermissible, especially since their are other valid ways to ascertain their suitability for the job.
6.15.2007 6:25pm
Ted Frank:
It amazes me that the scandal is that "40% of Civil Rights hires from 2004-2006 were Federalist Society or RNLA members" rather than "0% of Civil Rights hires from 2001-2003 were Federalist Society or RNLA members."
Except that the key missing ingredient is "measured against what baseline?"

Call me crazy, but I have to believe that Federalists/RNLA members have historically applied to DOJ's Civil Rights Division in numbers you'd need a Geiger counter to detect. It's damn difficult to hire somebody who hasn't applied.

In any event, don't you think that Federalists/RNLA members represent substantially less than 40% of just about any non-partisan hiring pool you care to pick (law school grads; law review editors; tier 1 grads; federal appellate clerks; etc.)?

Your amazement amazes me.
6.15.2007 6:37pm
Ted Frank (www):
The relevant hiring pool is "qualified applicants interested in working for the Bush Justice Department." And that number is a lot closer to 40% (if not higher) than 0%.
6.15.2007 6:58pm
GeoffBro (mail):

Given that you're concerned mainly with ideology rather than political party, I'm not sure that your hypothetical really still applies.

Insofar as someone possesses a certain ideology, but is willing to pursue their superiors' priorities regardless of that ideology, their viewpoint is irrelevant to the hiring decision. Whether or not they do so enthusiastically is a non-issue, so long as they do so competently. To the extent that a candidate volunteers the information that they may be unwilling to do so (as both Connie and Libby appear to), they demonstrate poor judgment and so should be rejected on those grounds.

However, since you generally cannot divorce questions about an individual's beliefs from questions about their political affiliations and have this example remain relevant, it seems like the wisest course of action would be to focus on credentials and qualifications and avoid explicitly asking about opinions on DoJ priorities. Which means the hypothetical raised here should never really occur in any meaningful way.
6.15.2007 7:02pm
that number is a lot closer to 40% (if not higher) than 0%
Frankly, as long as we're tossing around purely personal speculation founded on no actual data, I find your estimate comical and absurd. Higher than 40%? Be serious, Ted.
6.15.2007 7:06pm
Eli Rabett (www):
Seems to me if I were defending a case I would attack the DOJ as a biased untrustworthy bunch. Of course, there is the issue of the biased, untrustworthy judge, but the jury would eat it up if you could get it in. For sure, in a voting rights case brought by this bunch, anyone who accepts their word on anything is stupid.
6.15.2007 7:49pm
Eli is, of course, right about one of the chief reasons why any hint of political filtering in the hiring of DOJ trial attorneys is a terrible idea. And I know DOJ trial attorneys who are convinced they are already facing increasing skepticism from judges and juries because of this mess.
6.15.2007 7:54pm
c.f.w. (mail):
Why have these subject-based pigeon holes for prosecutors? I would suggest hire generalists and have a rotation system. Also, why have all this effort at the federal level? Push as much as possible back to the states. Allow private rights of action and get the government out of the specialized Republicanal/Democrat legal feuds. Let the DOJ focus on national or international problems of note, such as leading more constructively on terrorism issues.

Recall that England has a system of generalist barristers, or at least Rumpole says they did. US JAG's modeled on the English military lawyers are assigned defense and prosecutor roles pretty much on an as-needed basis. Lawyers are cheapening themselves when they let themselves be pigeon-holed too much - like judges who agree to pigeon-hole subject jurisdictions.

From that philosophical perspective, I would pick the best lawyers who could work within the government structures, in a variety of jobs, and not just in one subject area.

Put a premium on top legal/forensic skills as well as language capacity, international perspective and experience looking at the US from abroad for a few years.

I would also put a premium on top legal/forensic skills linked with multi-disciplinary training - lawyers who also know computers, bio-tech, engineering, science, math, accounting, history, consulting, economics, sociology, etc.

Finally, look for those who like to innovate, experiment and invent new and useful structures - like Alex Hamilton invented large chunks of the federal system as de facto prime minister under Washington.

It is not enough to say I (L,M or C) have read cases and statutes a lot and I like and want (and will only really be happy with) cases that will distinguish me as a Republicanal or Democrat stalwart. That "give me an ideologically significant pigeon-hole" plea is a bit selfish and a neutral or negative disclosure.
6.15.2007 7:55pm
By the way, I believe in the DOJ Honors Program, applicants apply to multiple divisions, but they have to rank their choices. So, the question would not be how many Republicans wanted to work for the DOJ in a Bush Administration (or under any Administration, and it just happened to be this one). Rather, it would be how many of them ranked Civil Rights as one of their top choices of Division.
6.15.2007 8:01pm
I'm offended. Where's Larry the Libertarian in all this? Oh, wait, a true libertarian would never work for the DOJ, except MAYBE in the property theft department -- and even then under protest because that is properly a state or local matter. Hmmm.

The first judge I clerked for asked for party affiliation and hired me after I said "none because I don't recognize any man's right to tell another how to live his life -- and whether you put 1 man or 10000000 men on scale, it means nothing to me. All parties are just collections of folks who want impose their will on their fellow man, and I want nothing to do with them." (Or something like was so long ago...judge was an outstanding, open-minded fellow...and I was a loyal and productive clerk)

But I digress, to answer the question, the hiring attorney needs to decide if he wants an effective voting rights division. If yes, send Connie to smutville and Libby to righteous dogooders division. If not, hire Connie and encourage her to get pregnant and take long maternity leave. Ditto for obscenity and Libby. Moe (or Curly) should not get the job because he needs to stay in the productive, er, private sector to pay the taxes to make Connie and Libby's meaningless and worthless work possible. Done. Where do I collect my prize?
6.15.2007 8:44pm
Richard Aubrey (mail):
ATR. Did I explain DO to you?

I am aware that these are not political jobs the hypo refers to. The point is what is the personal view of the applicant, not the political view. Does that make a difference and do the voters have an interest in the issue?
6.15.2007 9:04pm
Bruce Wilder (www):
A civil servant is being hired to fulfill a role, in which the civil servant is expected to carry out the policy enacted by Congress, as it was enacted by Congress.

Connie the Conservative's skepticism about the Voting Rights Act, or Libby's skepticism about pornography prosecutions might actually be extremely useful, as part of a legal team, in avoiding self-deceptive group think and the like. I can well imagine hiring someone, deliberately, whose ideology pre-disposed them to understand a broader range of points of view.

Again, like other commenters, I don't think that has been the key issue. And, although hiring on the basis of partisan affiliation is what triggers Hatch Act considerations, I don't think partisanship, per se, is the problem, either, with actual Justice Department hiring practices.

It is not OK, to effectively repeal the Voting Rights Act, by a civil service staffing decision: to hire people, who are most certainly committed to NOT playing the role of a civil servant. I don't think your hypothetical Connie or Libby indicated that they were not willing to do their job; nor, did they indicate that they wanted to do the job in a tendentious or malicious way.

There's a serious problem, when a President or his Attorney General decide that the legally enacted policy of the government can be gamed out of existence. Ethically, a civil servant ought to feel constrained from cooperating in such efforts, but, of course, if the politicos hire the civil servants, that's going to be a serious problem.

Which is why political appointees should not be routinely hiring civil servants.
6.15.2007 9:14pm
incoming fed lawyer (mail):
If these people are our only choices, how about Connie for Obscenity, Libby for Voting Rights, and Moe for a federal judgeship? Make him a magistrate or something, to start ;) But I really think it's pretty distasteful for people to telegraph their political views like Connie and Libby, and still expect to get "neutral" civil service positions ... you want people who care, but who wants a zealot?

Anyway, I agree with the idea that you want some diversity of views to counter group-think and retain credibility, but also that I'd need to hire people who care at some level about their job. Otherwise they're really just wasting tax dollars. And, like it's been said, it's not a staff lawyer's job to repeal enacted law by refusing to enforce it. If they want to do that, they need to join an electoral campaign, not a civil service organization.

Personally, I am a goo-goo progressive populist (shocking that I applied for a fed gov't job, huh? like others have said, there's definitely self-selection going on...), but I worried about giving that away, especially applying for jobs with a conservative administration. Plus, I don't think it's that relevant - I'm not going to be applying my politics to my professional decisions. But, to be safe, I avoided ideological student groups, spent both law school summers working for the US military (a conservative government institution that I still somewhat respect), got a clean, short haircut, a nice suit, and sent off my applications to the various 3L/Honors programs. And what do you know, a relatively non-partisan agency brought me in for an interview.

To their credit, they asked me exactly zero policy/politics/ideology questions, but stuck to quizzing me about my background knowledge/skills, general interest in the subject area, professional ethics, a few hypos, and asked about my writing sample. Perfectly tame and perfectly relevant to my job. No political BS. I liked that, and they liked me, so I got and took their offer. I really want to believe that the situation is similar at other agencies, but I do cringe when I read about DOJ. No organization should be run like that....
6.15.2007 11:29pm
I'd like to propose that our adversarial legal system works best when there's a zealot in every position. There are plenty of ardent defenders of free speech at the ACLU and law schools across the country. These lawyers will take many important free speech cases pro bono. Moreover, every defendant has a personal incentive to plead his case passionately. For the adversary process to work well, we need the government's obscenity lawyers to be passionate about a more restricted view of free speech. Otherwise the law will stagnate at a point skewed toward defendants. Under this view, the problem with the Bush administration (and perhaps other administrations as well--I don't mean to be partisan) is that there are too many environmental skeptics at the EPA, civil rights skeptics at the CRD, and antitrust skeptics at the FTC and DOJ.

I agree with the idea that it's healthy to have a mix of views in every department. But every department should be passionate about its side of the law.
6.16.2007 4:14pm
Brian G (mail) (www):
You think Janet Reno was hiring the pick of the Federalist Society litter? Of course not. We all know it goes on, but it is only an issue when a Republican is President.
6.16.2007 5:00pm
TruePath (mail) (www):
As someone already mentioned I think it is important to distingush between political based hiring preferences and policy based hiring preferences. I don't have too much problem letting the organization hire people based on it's long standing and institutional philosophy. If the civil rights department has an long tradition of zealous enforcement of the voting rights act than gaging someone's enthusiasm for that task is relevant. Though of course their are limits into how deeply you want to dig into someone's philosophical or religious views determined by our societal sense of privacy.

However, I have strong objections to hiring based on partisan political affiliation or a matching philosophical view to the president. Basically I think this is an issue of civil service professionalism and independence from the administration. Like the courts the federal agencies have great latitude in how they choose to interpret the law and these deciscions have a big impact on the country. We all understand the importance of precedent in the legal system, even if you might disagree with the original deciscion continuity and settled rules have a great value and the same argument applies to the executive agencies.

Ultimately the important thing is that agencies develop a long lasting tradition/philosophy/agenda. This not only gives employees and the public a certain place to stand on but gives congress the chance to make tweaks and corrections. If the philosophy changes every time a new president arrives congress doesn't have the opportunity to tweak the agencies and responsibilities until they are pursuing the ends congress desires.

Of course the president should have some power to set priorities and make other high level deciscions. Hence the reason we have the high level political offices and the lower level career positions.
6.16.2007 7:56pm
JosephSlater (mail):
Brian G.:

Nobody doubts that ideology and even party affiliation can be a criteria -- even a dispositive one -- for certain government positions: specifically, "policy making" positions like attorney general.

On the other hand, I hope you would agree that governments shouldn't be able to hire and fire, say, janitors and secretaries, because they have the "wrong" party affiliation. And whether you agree or not, that's generally barred by First Amendment and/or civil service rules.

Attorneys at the DoJ are not considered "policy-making" employees. Moreover, as I said above, to the extent this hypo is supposed to relate to actual issues in the Bush administration, the truth is that the administration isn't just giving an edge to folks with certain political leanings as against otherwise similarly-qualified folks. The Bush administration is placing ideologically loyalty waaaay above basic competence, time and time again.

This isn't a partisan point. Bush, Sr. didn't do this sort of thing.
6.16.2007 7:57pm
Justin (mail):
I agree with Steve. This is a straw man's argument.
6.16.2007 10:45pm

I didn't really understand your post. But I would note that our laws do not contemplate that the career ranks will be repopulated with every election, and for very good reasons.


I don't think that is right when it comes to government lawyers. The problem with being a known "zealot" is that judges and juries will tend to discount what you argue on the assumption you are biased.
6.17.2007 6:05pm

Sorry, I posted before I was done. Anyway, to continue:

And government lawyers in most contexts strive very hard to create and maintain the impression that their only interest is to uphold the law, not to use the law to aid any particular person or favor any particular cause. That is what I was trying to get at with Curly the Centrist: that is the sort of lawyer judges and jurors might be able to trust more than any "zealous" advocate for a special interest group, business, or person, and that trust is a precious commodity for government lawyers.
6.17.2007 6:10pm
Richard Aubrey (mail):
ATR. The career ranks will not be entirely repopulated wiht every election. I know DO is not really what's going on. Really, it's an attempt to pretend the subject is not what it is--where you have no chance--to one which is isn't but where you might stand a chance. It only looks like being obtuse. Might work on a sleepy jury.
Try to break bad habits.
When there is an opening, the electorate would prefer things go their way, and that has a special meaning to the majority. They voted to influence the government.
That the career ranks are not repopulated with each election is both true and an embarrassingly lame straw man.
I want to say you can do better....
6.18.2007 12:58am

I really can't understand your posts--literally, I don't know what you are trying to say.

I'll just note again our civil service laws exist for a reason. I'll also note that for the DOJ in particular, it would be very harmful for judges and juries to get the impression that DOJ trial attorneys were being selected on the basis of their political allegiances. Among other reasons, that is because any given judge or juror may not in fact have voted for the President in the last election.

Indeed, one might think about the fact that the Framers of the Constitution provided important roles both for unelected judges with lifetime tenure and for juries. For that matter, originally the Senate was not directly elected and the President still isn't, which sometimes has consequences (as in 2000). Accordingly, it is quite obvious that the Framers did not contemplate that the electorate would always get its way with our government.

Again, though, whether bringing this up is addressing a strawman or not I can't tell, because I really can't tell what you are trying to say.
6.18.2007 7:45am
Richard Aubrey (mail):
The problem with your point is that it is false. The hypo wasn't about political allegiance. It was about personal positions on certain issues. There is nothing there about political issues.
Try to get it, this time.
Once you get it, the rest becomes easier. The voters want things to go their way. People whose political views include, say, anti-porn want their votes to influence the enforcement of porn law. They would be outraged if the pick were a pro-porn, what's-the-problem guy. Elections is how we influence government.
Property rights people would be annoyed if the pick for a slot having to do with, say, the environment was a big fan of Kelo and thought wanting to preserve the value of your property was open and shut evidence of evil greed.
And that's why, as I keep saying, we have elections.
Elected officials are supposed to influence these picks for the voters.
6.19.2007 1:33pm