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Law, culture, and Catholicism...up in smoke!

Friday, June 27, 2008

Did the DOJ Illegally Hire Conservative Applicants?

The Office of Inspector General recently issued a report finding that the Justice Department illegally hired conservative applicants to the DOJ Honors program. From an article in the New York Times:
The blistering report, prepared by the Justice Department's inspector general, is the first in what will be a series of investigations growing out of last year's scandal over the firings of nine United States attorneys. It appeared to confirm for the first time in an official examination many of the allegations from critics who charged that the Justice Department had become overly politicized during the Bush administration.

"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."

The shift began in 2002, when advisers to then-Attorney General John Ashcroft restructured the honors program in response to what some officials saw as a liberal tilt in recruiting young lawyers from elite law schools like Harvard and Yale. While the recruitment was once controlled largely by career officials in each section who would review applications, political officials in the department began to assume more control, rejecting candidates with liberal or Democratic affiliations "at a significantly higher rate" than those with Republican or conservative credentials, the report said.
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 full government report can be accessed here. Commentary can be found at the Volokh Conspiracy here.

My initial reaction was, "Why is this an issue? Can't the DOJ hire who it wants to, even based on political leanings?" It turns out that I was wrong, and that this is an issue. Of course, private citizens can discriminate based on political affiliations when hiring. The President can certainly discriminate based on political affiliations when hiring someone as a political appointee. But for non-political appointee, civil servant positions in the DOJ Honors program, it is illegal to hire based on political affiliations. 28 C.F.R. 42.1(a) says that: "It is the policy of the Department of Justice to seek to eliminate discrimination on the basis of race, color, religion, sex, sexual orientation, national origin, marital status, political affiliation, age, or physical or mental handicap in employment within the Department and to assure equal employment opportunity for all employees and applicants for employment (emphasis added)."

This raises all kinds of interesting issues:

-The government report compared the deselection rates of liberal "highly qualified" candidates versus conservative "highly qualified" candidates. However, "highly qualified" was defined as having attended a top 20 ranked law school, being in the top 20%, with a federal judicial clerkship and law review credentials. Thus, an applicant from Notre Dame or AMSL or a non top-20 law school is not considered "highly qualified," even though a highly intelligent conservative law student might specifically choose ND or AMSL over liberal Harvard and Yale. So, a top student from Notre Dame or AMSL would not be considered a candidate on par with a candidate from a US News top 20 school, and presumbly a Notre Dame/AMSL hire would be evidence of illegal hiring.

-It is a humorous to read the report claiming discrimination of liberals, because it is clear from the report that liberals outnumber conservatives to a huge extent and overwhelmingly dominate the legal community. For example, the report's appendix lists organizations which applicants were affiliated with. For the 2006 Honors Program, applicants were affiliated with 72 "liberal" organizations, but only 12 "conservative" organizations, a ratio of 6 to 1.

-A commenter on Volokh points out that liberal candidates to the Honors program in 2006 outnumbered conservative candidates by a ratio of 5 to 1. Why so many liberal candidates to begin with? Were conservative candidates screened out in greater numbers by the screening committee, which may have been made up of liberal careerists?

-Even supposing Republicans are guilty of this, weren't the Democrats guilty of this in the Clinton years? The DOJ Civil Rights Division is notorious for being filled with ultra-liberal personnel.