A spokesman for Senator Max Baucus, Democrat of Montana, said early Saturday that the senator nominated his girlfriend, a lawyer who worked for him at the time, for a United States attorney position last March.
The girlfriend, Melodee Hanes, worked for Mr. Baucus as his state office director and as a field director between 2003 and 2009.
Baucus eventually withdrew Hanes’ name from consideration. Because he thought better of his obvious ethical lapse? Hardly.
Mr. Baucus and Ms. Hanes then decided that she should withdraw her name from consideration because the couple wanted to live together in Washington, Mr. Matsdorf said.
Matsdorf, it should be noted, is Baucus’s spokesman, and that’s the best he could do!
In his statement, Mr. Matsdorf said Ms. Hanes was recommended for the United States attorney position solely on the basis of her credentials.
“With an extensive background as a prosecutor and extensive legal experience, Ms. Hanes submitted her name for consideration for the U.S. Attorney position from Montana,” he said. “Her name was one of six that was submitted for review by Senator Baucus to an independent, highly respected Montana attorney who reviewed the applications. After an
extensive evaluation of all the applicants’ qualifications, Ms. Hanes was one of three applicants the third-party reviewer recommended for consideration.”
I don’t know anything about Hanes’s background, nor do I know how “independent” the third-party reviewer was. But spending the last six years working as a Senator’s field office and state office director (i.e., not even working as a lawyer) hardly seems like the kind of credentials one expects from a U.S. attorney candidate, and certainly not one purportedly recommended “solely on the basis of her credentials.”
And even if Hanes was the single most qualified individual in Montana for the position, it’s obvious that Baucus should have had no part in nominating his girlfriend to a U.S. attorney position. (The fact that Baucus and Hanes were both married (but separated) at the time is getting much of the attention in newspaper headlines, but is hardly the core of the public scandal.)
Baucus has abused his position and the public trust, and has proven himself unworthy of being a Senator. He should resign. Unfortunately, the voters won’t have a chance to kick him out until 2014.
UPDATE: Credit goes to the website Main Justice for breaking the story and forcing Baucus’s admission. Hanes’s c.v. can be found here. And there is this nugget: “‘She was recommended for the position because of a very close and personal relationship with Max Baucus and she withdrew because of a very close and personal relationship with Max Baucus,’ Thomas Bennett, Hanes’ ex-husband, told Main Justice.”
FURTHER UPDATE: The Daily Kos reviews Hanes’ background, and concludes that she and Bennett “left Iowa in disgrace.” The Eighth Circuit later wrote about one of Hanes’s cases:
Every court that has reviewed this case has been struck by certain aspects of the trial and actions of prosecutors that violate the fundamental notions of fair play on which our legal system is based. For example, the Iowa District Court for Polk County, addressing Morales’s application for post-conviction relief, found prosecutor Hanes’s instruction to withhold medical records from the defense team prior to the second autopsy “suspicious at best” ....
The treating surgeon has now recanted his trial testimony, at least to the extent of placing any reliance on the opinions of the Medical Examiner [Bennett, Hanes’s then-husband]. Defense counsel failed ... to make an adequate offer of proof regarding the romantic relationship between a prosecutor [Hanes] and the Medical Examiner [Bennett].
Finally, fwiw, Hanes lists herself on her c.v. as an adjunct professor at Drake Law School from “1990-present.” Seems odd to me that someone living in Montana could be an active adjunct professor in Des Moines, and a search of Drake’s website retrieves no results for “Hanes,” nor do the classes she purports to teach appear in Drake’s course list.
ANOTHER UPDATE: Some commenters think I’m being too harsh on Baucus, given that Senatorial appointments are full of conflicts of interest, personal favors, favoritism to friends, relatives, political allies, donors, friends and relatives of donors, etc. Perhaps. But I suspect that if I knew more of what went on behind closed doors in the Senate, my reaction would not be that this absolves Baucus, but that more Senators should resign, not that Baucus should be off the hook.
Soronel Haetir says:
Unfortunately 2014 is far enough out that this won’t matter if he isn’t forced to resign now.
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December 5, 2009, 9:53 amdearieme says:
“Melodee”: bless you, America.
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December 5, 2009, 10:05 amdearieme says:
“..from “1990-present.” Seems odd to me..”: it all depends on what the meaning of the word “present” presents.
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December 5, 2009, 10:09 amEarly Bird says:
While Baucus is clearly corrupt, and Hanes sounds woefully unquallified for the USA job, living in MT and teaching in Iowa as an adjunct isn’t all that out of line with practices at other schools. At IU-B we used to have a trademark practitioner commute from DC once a week to teach a class, and one of the clinical professors used to commute to NY for a consulting job twice a month.
We also have a professor who doubles up here and at Oxford. He teaches two classes each fall; they’re two hour classes, but you take them for four hours a week for half the semester.
Hanes may or may not have had some sort of similar set up, but it’s not outside the realm of what I’ve seen elsewhere.
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December 5, 2009, 10:22 amrarango says:
I am not clear–Mr Baucus must be a republican–party affiliation is not identified, and since only republicans are scum bags Baucus couldnt be a democrat–Damn–where is alberto gonzalez when we really need him.
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December 5, 2009, 10:22 ampireader says:
Professor Bernstein –
I’m no fan of Senator Baucus, and that appellate opinion makes Ms. Hanes sound dubious. And it’s all a bit sticky ... bedfellows make for strange politics. But government, like business and academia, is full of couples in personal relationships. What did Baucus do to stir your outrage?
That he recommended an administration official for a presidential appointment who used to be a member of his staff ? Happens every day.
That he became involved with another woman while separated from, but not yet divorced from, his wife? Happens every day.
That he had had a consensual intimate relationship with a staff member? Happens every day.
That he recommended somebody with whom he had a personal(or family) relationship? Happens every day.
That he recommended her without disclosing the personal relationship to DoJ? Could be a problem ... but the Main Justice story doesn’t say what was disclosed.
Please explain.
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December 5, 2009, 10:47 amDavid Bernstein says:
(a) no direct flights
(b) not independently wealthy to pay her own commuting costs
(c) not prominent enough for Drake to be willing to pay her commuting costs.
Not impossible, but I’d be surprised if she’s actually taught at Drake since moving to Montana.
Pireader: There is plenty of petty corruption in D.C. That doesn’t excuse the most blatant forms of it, including recommending your lover for a political appointment.
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December 5, 2009, 10:57 amMartyA says:
I’ve long wondered why the Washington media didn’t find more Senatorial girlfriends. It seems to me that Senators have to be some of the most arrogant people on earth and with lobbyists, groupies and “staff,” the opportunities very tempting. Add to arrogant the “not very bright” factor, especially with guys like Edwards, Kerry and Biden, there HAVE to be facts not reported by the DC media.
There must be little places in Georgetown or in towns on the Bat where a randy Senator can take a girlfriend, confident that the code of the local media will ensure that no mention will ever be made of any sighting.
With respect to Baucus appointing his girlfriend as a US attorney, isn’t the ONLY qualification for such a position today the willingness to do exactly what Holder and the other party hacks order you to do?
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December 5, 2009, 10:59 amAJK says:
True in principle, perhaps, but the fact that neither Hanes nor the courses she claims to teach appear on Drake’s website suggests otherwise.
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December 5, 2009, 11:22 amjackson says:
According to her CV, she was hired as counsel to the Administrator, which is a career position. That position had to be posted and filled competitively without regard to political affiliation. I presume that it is an SES or GS-15 position (probably the latter) and pays at least $120,830, but more (up to $153k) if she was given additional “steps” as would be common. Like other Members of Congress, Sen. Baucus is barred by law from recommending an individual for a career position. I think that there are restrictions on transfers from the Hill to career government positions, but I do not know what they are.
If she is not currently an adjunct professor, there is an issue for OPR
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December 5, 2009, 11:27 amwws says:
Pireader, where you were during any of the stories about interference with US attorneys over the last few years?
Here, Baucus tried to push his unqualified mistress into a US Attorney’s position. If you can’t call that corruption, I don’t know what you *would* say corruption is. Are you going to openly endorse sleeping with a US Senator as a valid “career path” in Federal law enforcement, one that should be allowed to trump more “traditional” career paths such as, oh, possibly being qualified by experience and training for the job?
All I get from your excuse factory of a post is that since corruption happens every day, there’s no reason to point it out and we should all just live with it.
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December 5, 2009, 11:38 amSgtDad says:
I am curious as to why no one has commented on the obvious pattern here.
The other question, given the obvious pattern, is just how long Hanes will remain the senator’s paramour.
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December 5, 2009, 11:39 amShelby says:
Your DailyKos link is broken; this appears to be the correct one.
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December 5, 2009, 11:44 ammls says:
Pireader’s questions occurred to me as well. In a legal blog, one would hope that the focus is not on knee-jerk outrage, but on precisely what conduct is impermissible and why.
Is recommending “your lover” for a job impermissible per se? Is it only if she is unqualified? Or if the relationship is undisclosed? Or if the personal relationship, rather than qualifications, motivates the recommendation? I suspect that a very large number of senatorial recommendations are based, at least in part, on personal or political connections of one sort or another.
I am not trying to defend Baucus’s actions, which certainly have a high “yuck” factor. I think more analysis would be helpful, however.
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December 5, 2009, 11:55 amDmow25 says:
From a MT absentee resident (who grew up in Helena with decent knowledge of the political landscape).
Not going to spend a lot of time digging into her, past, but it seems she is obviously unqualified. Even if she were qualified, Baucus could have been smart enough to get the other Senator to nominate her.
For the record, she isn’t the best Montana has to offer.
Anyway, while this incident stinks, this is far from the first, last or most severe incident of this type. Politicians (even otherwise good ones) try to get their backers/friends/relatives/proteges/etc. into good government jobs all the time.
Baucus won’t resign, nor will he suffer any significant problems being re-elected in 2014 (how healthcare reform turns out will be a bigger factor by then). Better the devil you know (that has some seniority in the party)...
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December 5, 2009, 11:58 amDavid Bernstein says:
I never claimed that Baucus’s conduct was illegal, though I can imagine that it might well be. I said it was unethical. And as a law professor, I don’t have any special insights into ethics, and I don’t think you need any to see why a Senator shouldn’t be involved in trying to get his lover a job as a U.S. attorney.
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December 5, 2009, 12:05 pmjosh says:
This totally makes sense. Reminds me of the post on this blog citing the ethical lapse and nepotism of Bush II appointing 28-year-old Strom Thurmond Jr. as USA for South Carolina. Oh wait ...
Or the well-publicized criticism of Sen. Ensign paying off his mistress’ husband. Hmmmm....
Usually, I don’t go for the hypocrisy line of argument, but what’s good for the HRW is good for the gander!
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December 5, 2009, 12:22 pmOff Kilter says:
Baucus’ latest announcement: “I want to assure the American public that none of my clandestine lovers have any involvement with the healthcare industry...”
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December 5, 2009, 12:47 pmDavid Bernstein says:
Just looked up the Thurmond Jr. story out of curiosity. He was nominated in ’01, before this blog existed. Not only didn’t I blog about it, I prevailed on Eugene to not start this blog until a year or so later, to make sure none of the Volokh Conspirators could blog about it!
There’s a Senator named “Ensign?” Really, I can’t say I’ve heard of him, at least not well enough to have any idea what state he’s from. “Well-publicized” is obviously relative, because I’ve never heard of the relevant scandal.
(The broader point, of course, is that it’s idiotic to criticize a blogger for blogging about one story and not another. You don’t know whether the blogger even noticed the other story, whether he noticed it but when the story broke didn’t have time to blog about it, whether he noticed it but didn’t think he had anything to say about it, etc etc.)
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December 5, 2009, 12:52 pmSgtDad says:
Geez, Josh, are you implying Strom Thurmond was sleeping with his son? Nepotism & cronyism is hardly new in Congress — that’s not why this story is news. What makes this newsworthy is that the nominee is simultaneously
— Baucus’ bedmate,
— demonstrably incompetent & unethical,
— advances her career using sexual laisons.
I am given to understand Strom Thurmond, Jr. was thought to be a reasonable competent USA, by the way.
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December 5, 2009, 1:03 pmShelbyC says:
Bush II was nailing Strom Thurmond’s son? Wow.
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December 5, 2009, 1:05 pmrigs says:
I have a hard time seeing the outrage here–especially outrage to the level of demands for resignation–over the nomination of a person a Senator knows for the post of US Attorney.
*glances at byline*
OK. Got it now.
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December 5, 2009, 1:07 pmStrict says:
“There’s a Senator named “Ensign?” Really, I can’t say I’ve heard of him, at least not well enough to have any idea what state he’s from. “Well-publicized” is obviously relative, because I’ve never heard of the relevant scandal.”
I’m not sure...are you being serious here?
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December 5, 2009, 1:08 pmThe case of Max Baucus | America Watches Obama says:
[...] 0 Comments There is something hilariously outlandish about the disgrace of Montana Senator Max Baucus having nominated his girlfriend to be a candidate for the position of United States Attorney for Montana. David Bernstein captures the relevant details in “Baucus scandal.” [...]
Tweets that mention The Volokh Conspiracy » Blog Archive » Baucus Scandal -- Topsy.com says:
[...] This post was mentioned on Twitter by Joe Kristan, Eugene Volokh. Eugene Volokh said: Baucus Scandal: N.Y. Times: A spokesman for Senator Max Baucus, Democrat of Montana, said early Saturday that t.. http://bit.ly/8AWGSh [...]
Prosecutorial Indiscretion says:
At last we have an answer to the age-old question “Who do I have to f**k to get a political appointment around here?”
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December 5, 2009, 1:31 pmSheesh « Internet Scofflaw says:
[...] The mistress’s vita looks decidedly thin. When nominated, she had been out of the practice of law for six [...]
David Bernstein says:
You know, I know readers often don’t believe me, but I’ve written before that I don’t as a rule follow politics closely, and I’m being totally serious.
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December 5, 2009, 1:41 pmLarryA says:
Actually Sen. Baucus is a Democrat. It’s interesting that I couldn’t find that in a quick scan of his official Senate website.
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December 5, 2009, 1:45 pmShelbyC says:
No problem with Senators appointing unqualified folks that they’re sleeping with in your world, eh?
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December 5, 2009, 1:46 pmMark B. says:
Just wait’ll I get my Hanes on you.
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December 5, 2009, 1:50 pmOut of Iowa says:
As a fairly recent recent Drake Law grad, I can say that I have never seen or heard of this “adjunct” professor.....
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December 5, 2009, 1:54 pmSgtDad says:
Perhaps the Iowa practitioners could advise us as to why this woman was not disbarred.
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December 5, 2009, 2:01 pmHarry Eagar says:
LarryA sez about rarango: ‘Actually Sen. Baucus is a Democrat. It’s interesting that I couldn’t find that in a quick scan of his official Senate website.’
Why were you looking at the web site, since the Times story, the first 9 words of this post, sez: ‘Senator Max Baucus, Democrat of Montana’?
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December 5, 2009, 2:08 pmInstapundit » Blog Archive » A ROUNDUP ON THE Max Baucus sex-and-appointments scandal…. says:
[...] A ROUNDUP ON THE Max Baucus sex-and-appointments scandal. [...]
Guy says:
You can tell he’s a Democrat because he’s in trouble for a scandal involving his relationship with a person of the opposite sex.
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December 5, 2009, 2:14 pmOrion says:
from “1990-present.”
That could be an oversight: lots of people don’t update their resume’s often enough or miss details like that. The big problem of course is that she was nominated because she was bonking Baucus. He had a clear conflict of interest in nominating her for US Attorney and ignored that until it became publicly known. I’m surprised that Montana is so open about one of its Senators sleeping with someone else’s wife, too.
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December 5, 2009, 2:23 pmpireader says:
Professor Bernstein–“There is plenty of petty corruption in D.C. That doesn’t excuse the most blatant forms of it, including recommending your lover for a political appointment”
“I said it was unethical ... a Senator shouldn’t be involved in trying to get his lover a job as a U.S. attorney.”
Maybe it would be unethical for Max Baucus to appoint his lover as US Attorney; or maybe not. That doesn’t matter, since the President makes the appointment, not him. Baucus just suggested her name.
Politicians advance the names of their family, friends and supporters–and even the families and friends of their supporters–for political appointments all the time. That’s not corruption, it’s just politics ... legal, ethical and perhaps even desirable.
After all, Congress exempted the most-senior government positions from the civil-service laws for good reasons. We want them populated with people loyal to the President and his party; and loyalties are often personal.
Where do you suppose all those non-career ambassadors come from? Or US Attorney Strom Thurmond Jr., mentioned above? Or US Attorney General Robert Kennedy, back in the 1960s?
What’s ‘corrupt’ or ‘unethical’ here? I don’t see it, so I’m asking you to explain. Sputtering that it’s ‘blatant’ doesn’t help much.
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December 5, 2009, 2:28 pmneurodoc says:
Baucus’s domestic life has been in the news before.
http://www.cnn.com/2004/ALLPOLITICS/04/21/baucus.wife/
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December 5, 2009, 2:34 pmBob from Ohio says:
While it depends on how you define it, I am sure she has excellent “credentials” in one area.
MarkB wins this thread btw.
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December 5, 2009, 2:35 pmXanthippas says:
What a jackass.
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December 5, 2009, 2:35 pmGuy says:
Wait, this is a legal blog? I thought it was an anti-AGW/Republican talking points blog, based on the majority of recent postings.
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December 5, 2009, 2:36 pmKazinski says:
The big difference between the Baucus-Hanes appointment and Strom Thurmond Jr. appointments is that the Thurmond appointment was out in the open. You can make sure that Thurmond Jr. got an awfully good vetting by the press, by the bar, by the Senate etc.
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December 5, 2009, 2:37 pmDavid in San Diego says:
Who knew that the credentials for a U.S. Attorney candidate included being able to move a golf ball through a garden hose? IYKWIMAITTYD.
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December 5, 2009, 2:39 pmBob from Ohio says:
When relationships are known like RFK or Strom Thurmond Jr., it is a factor that can be identified and discussed.
Secret relationships are totally different.
Like Lot’s daughters?
Again, its the lack of disclosure.
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December 5, 2009, 2:42 pmDavid Bernstein says:
You do, in fact, you just don’t think that it differs in kind or perhaps even in degree with other unethical behavior that goes on routinely, because it’s all just politics, and we expect politicians to be corrupt. Do you work on the Hill?
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December 5, 2009, 2:45 pmRPT says:
I have no particular regard for Sen Baucus (whose affiliation is really D:Insurance Industry), but he really doesn’t “appoint” US Attorneys. “Mel” wouldn’t have survived any real scrutiny on the way to confirmation. This subject has been discussed in some detail in recent years. As far as interesting relationships go, you should check into Gov-elect Christie and his former chief asst AUSA.
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December 5, 2009, 2:49 pmBrian says:
FYI: Baucus was sued by a former Chief of Staff who alleged that he had made unwelcome sexual advances toward her:
http://theconservatives.com/life-marriage/2009/12/05/max-baucus-in-trouble-for-inappropriate-relations-again.html
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December 5, 2009, 2:51 pmneurodoc says:
That must be sarcasm, but I can’t decode it. There have been political scandals arising out of both opposite and same sex sexual relationships on both sides of the aisle in the course of recent years.
And it is surprising that someone who lives in Washington and reads both the NYT and Washington Post would not be aware of Senator Ensign and his ethical issues. I think this Baucus business is pretty shabby, especially given the back story about Hanes and her ex– as a prosecutor and medical examiner, but Ensign’s is sleazier, not without sereious ethical implications.
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December 5, 2009, 2:58 pmneurodoc says:
That must be sarcasm, but I can’t decode it. There have been political scandals arising out of both opposite and same sex sexual relationships on both sides of the aisle in the course of recent years.
And it is surprising that someone who lives in Washington and reads both the NYT and Washington Post would not be aware of Senator Ensign and his ethical issues. I think this Baucus business is pretty shabby, especially given the back story about Hanes and her ex– as a prosecutor and medical examiner, but Ensign’s is sleazier, not without sereious ethical implications.
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December 5, 2009, 2:58 pmDon de Drain says:
I’m NOT shocked about Baucus’ sleazy, unethical behavior. I AM shocked that David B had never heard of Senator Ensign before reading the comments to this post.
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December 5, 2009, 2:59 pmAllan Leedy says:
Why would anyone credit Baucus’s recommendation or nomination for any future appointment? Doesn’t this deprive the (paltry few) citizens of Montana of a useful kind of representation?
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December 5, 2009, 3:04 pmThomasD says:
Kos is this quick to jump in on the political destruction of a sitting (D)Senator?
Never mind all the talk about the right wing this is what a purge really looks like.
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December 5, 2009, 3:05 pmneurodoc says:
I don’t know where you live, but if you had visited Washington a few years ago, you could have taken a fun “alternative” tour of the city, the “Scandals” one. You were taken around town on a bus and the tour guide would point out places of historical interest that other tours did not take note of, e.g., the Capital Steps (inspiration for the performing group of the same name) where John and Rita Genrette expressed their love for one another; the Reflecting Pool where Fanny, “The Argentine Bombshell,” jumped in when she and Wilbur Mills were out on a drunken spree; etc. Amusing, but so what really, that is until it has real consequences.
I don’t get your lumping of “Edwards, Kerry, and Biden.” The first of course has been involved in a notorious adulterous affair, but when were Kerry or Biden accused of misbehaving? It’s one thing to accuse politicians of outsized egos and other things, but when it is an accusation of sexual misconduct, there should be some evidence to support the charge.
[Oh, and do you really think, as your comment suggests, there is less ethical conduct on Holder’s watch than there was on Gonzalez’s?]
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December 5, 2009, 3:09 pmBen says:
David, here’s some background about the Ensign matter:
Sen. Ensign is a Republican from Nevada who had an affair with one of his staffers. When her husband got angry, Sen. Ensign fixed him up with a job with one of his supporters. In addition, Ensign’s parents gave his mistress $96k out of their own pocket. After the husband started asking for more money, Ensign went to the press.
This even was deemed so horrific and unethical that it warranted a 5-page article in the A6 column of the NYT examining the laws that may have been broken: http://www.nytimes.com/2009/10/02/us/politics/02ensign.html It also warranted subpoenas from the Senate Ethics Committee: http://thecaucus.blogs.nytimes.com/2009/12/04/ethics-committee-issues-subpoenas-in-ensign-inquiry/
In this case, Sen. Baucus also had an affair with one of his staffers. In contrast to Sen. Ensign, whose aid to his mistress and her family came entirely out of his pocket, Sen. Baucus decided to repay his mistress by nominating her for an incredibly important position within the federal government, to be paid by taxpayer dollars.
Now, I know which one of those I think is more troublesome. I also know which one of those will be downplayed and swept under the rug.
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December 5, 2009, 3:13 pmMad Max Beyond US Attorneys: The Girlfriend Edition « Around The Sphere says:
[...] Scott Johnson at Powerline: There is something hilariously outlandish about the disgrace of Montana Senator Max Baucus having nominated his girlfriend to be a candidate for the position of United States Attorney for Montana. David Bernstein captures the relevant details in “Baucus scandal.” [...]
J Richardson says:
I always wondered what you do with a degree in Women’s Studies. Now I know — you can be nominated for US Attorney.
Am I the only who finds it highly ironic that a person with a degree in a field that promotes equality of the sexes gets to the top the old fashioned way? I.e, sleeping with the boss.
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December 5, 2009, 3:24 pmneurodoc says:
Really, Senator Ensign’s “aid to his mistress and her family came entirely out of his pocket”? IIRC, the cuckolded husband worked for Ensign (could be wrong) and what recommended him for the job that Ensign got him with a supporter was the implicit (maybe explicit) promise that Ensign would push pork their way so he would be worth what he was to be paid. If true, and it is entirely plausible given what has come out, then I think Ensign has Baucus beaten in terms of unethical conduct, at least in this match up.
(And which scandal do you think is going to be swept under a rug? BTW, did Wanda Baucus get special treatment after she was charged with assault, or like me don’t you know?)
BTW, doesn’t this just inspire that much more confidence in Baucus, who has played such an important role in drafting health care reform legislation, that with the help of former insurance industry execs at his side?
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December 5, 2009, 3:25 pmCornellian says:
A senator can’t nominate a US attorney, only the President can do that. So Baucus recommended his girlfriend for a US attorney position. Assuming he disclosed their relationship, that strikes me as the sort of garden variety nepotism that one expects from every Senator and Congressman and, for that matter, from most people in the private sector as well. Of course, whether she’s actually a good choice for the job is a different question.
On a related point, I’m personally surprised that more Senators aren’t cheating on their wives (or maybe they are and we just don’t hear about it). If you consider that the Senator is going to be working closely with female staffers who are significantly younger than he is, and who presumably admire him, and doing so while the wife is far away, you’d think affairs would be common. Since a close working relationship is required, and you want to hire people who support you, and they’re almost always going to be younger than a typical Senator and you can’t refuse to hire female employees, I think they ought to have some rule that says a male Senator can hire only very plain looking female employees. If I see a female staffer who looks like January Jones, I think there’s practically a presumption that she’s having an affair with the Senator, and if she isn’t then the Senator is thinking about it. It’s not fair to the staffer, but that’s the way the male mind works.
It doesn’t work in reverse — I don’t think the same presumption applies to younger male staffers working for older female Senators. I’ll also exempt Larry Craig from this rule and let him hire a staff of Victoria’s Secret models without suspicion.
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December 5, 2009, 3:41 pmtroyounce says:
So Mr. Bernstein has never heard of Senator Ensign and the well-publicized scandal that has been much in the news over the past year?
Okay.
Having that sort of minimal baseline of knowledge really should be a prerequisite before spouting off about things, don’t you think?
This post right here is about the same as somebody describing a great baseball player and then disclosing a few minutes later that s/he had never heard of, say, Babe Ruth.
It just makes you look really, really ignorant and pretty much destroys any credibility you might have on the topic.
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December 5, 2009, 3:41 pmDavid Bernstein says:
Troy, you win the award for perhaps the dumbest post of the year, congratulations, there’s a lot of competition.
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December 5, 2009, 3:52 pmArthurKirkland says:
The quality of comments sometimes struggles to rise above the level established by the original post.
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December 5, 2009, 4:00 pmpireader says:
Professor Bernstein — You do, in fact, you just don’t think that it differs in kind or perhaps even in degree with other unethical behavior that goes on routinely, because it’s all just politics, and we expect politicians to be corrupt. Do you work on the Hill?
In the past, I’ve found you to be thoughtful and reasonable, even when we disagreed; so this is disappointing.
I don’t find Baucus’ behavior unethical or corrupt, and I’ve explained why. You respond with a personal attack of the kind that Professor Kerr says should get you banned ... accusing me of low standards or deliberate obtuseness, and hinting that perhaps I’m just part of the cesspool.
Bob–“Pireader, where you were during any of the stories about interference with US attorneys over the last few years?”
Those stories disturbed me, but not because the Bush administration was changing out political appointees. I was disturbed because the US Attorneys were allegedly fired for resisting partisan political prosecutions.
What has that got to do with this?
Bob from Ohio– [I]ts the lack of disclosure.
That’s a reasonable argument. Although, frankly, I’m not sure how far to expect people to ventilate their personal lives before the world.
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December 5, 2009, 4:05 pmuberVU - social comments says:
Social comments and analytics for this post...
This post was mentioned on Twitter by joebwan: Polk County is getting a little fame... not in a good way. http://bit.ly/7904Fr...
Sarcastro says:
Let me also insult the blog writer! That way, he may start posting without comments again and then I can sit back and bask in the victory!!
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December 5, 2009, 4:11 pmBen says:
I don’t think there’s any evidence that Ensign “pushed pork” in the direction of the firm that hired Hampton any more than otherwise would have happened with your average staff member or friend going to a private business. It’s certainly made shadier due to the affair aspect, but which is worse — unethically helping someone get a job paid by a private supporter or unethically helping someone get a job paid by the federal government? There’s also the fact that as a minor lobbyist at a small political consulting firm, Hampton would have far less impact on the public than Hanes would have as the USA for Montana. One person makes phone calls to Assistant Junior Deputy Undersecretaries, while the other runs an office of several dozen(?) federal employees and sets prosecutorial priorities for an entire state.
I don’t know anything about Wanda Baucus, and hadn’t heard about her until today.
Do you honestly believe that there’s even the slightest chance he disclosed their relationship? That way back in March he said, “Hey Mr. President, here’s 3 people to choose from. By the way, I’m having an affair with one of them that started last summer while she was one of my staffers — six months before she got divorced. I’m actually still married to my wife as well (we’re not getting divorced until April). I’m also not going to announce that we’re in a relationship for at least 8 more months. I’m sure that this won’t in any way affect your decision on this issue.”
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December 5, 2009, 4:12 pmneurodoc says:
OK, on behalf of Troy, your nominee for “dumbest post of the year” honors...if someone had never heard of Babe Ruth, their opinions about the place of a modern player in the pantheon of greats might not deserve much weight. How closely analagous is not having heard of Babe Ruth and opining about the greatness of present day sluggers to not having heard of Ensign and his “troubles but opining about how scandalous is another senator’s conduct? If you think Baucus’ conduct was so egregious that “(h)e should resign,” then shouldn’t you be able to compare his conduct to that of his senate colleagues, like Ensign, and say how many others, at a minimum, should resign?
(BTW, did you think Ted Stevens should have resigned? What about now in retrospect? Others in recent times you thought were so damaged that they should have resigned? Larry Craig after his men’s room incident?)
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December 5, 2009, 4:17 pmDavid Bernstein says:
So you were serious about that?
Much of the odor surrounding politics is precisely what’s “legal,” but something being legal and commonplace hardly makes it ethical, much less desirable. If, for example, a politician gets his son-in-aw appointed to a position and he does, say, 80K worth of work, but a better-qualified but less connected individual would have done 120K worth of work, the politician has essentially stolen 40K from the public to satisfy help his own family. I understand this and much worse happens all the time in politics. That’s why the public correctly thinks that politicians are somewhere below used-car-salesmen in terms of ethics. If the appointee is a mere political ally, one can dismiss concerns with one’s nose held as “that’s how politics works in this country.” If one, however, is appointing one’s lover, you don’t even have that excuse, it’s pure use of the public fisc to give a gift to a paramour.
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December 5, 2009, 4:29 pmMarc J. Randazza says:
Bernstein,
Let me start by saying that I’m a fan of yours. “You can’t say that” is required reading in my house, and it is a frequent gift to friends.
But this post, and your defense of it, makes you out to be a little bit foolish.
1) Recommending someone you’re banging for a job? Yes, happens every day. Frankly, I would rather have a government full of women who get there by screwing senators than a government full of idiots who get there by having the correct imaginary friend.
2) You never heard of John Ensign? Then the correct thing to do is to place a dunce cap on your head, briefly, and then move on. It isn’t defensible to have that degree of ignorance, but a quick and honest admission that it is indefensible is one thing. Your reaction to being called out on it was ever so typical of a conservative.
3) Be careful about pointing fingers at someone for being unqualified to be a US attorney. You would have to look long and hard for law professors with an equivalent amount of experience as a lawyer. Life is all about who you know, when you said the right thing at the right time, and “qualifications” are a fantasy. You may be a brilliant writer (I think you are) and a brilliant legal mind (I vote for you on that too) but as far as “qualifications” go, when you became a law professor, you were barely qualified to first-chair a motion, let alone teach others how to be a lawyer.
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December 5, 2009, 4:30 pmGuy says:
I’m no fan of David Vitter, but I applaud his decision not to resign in the face of a prostitution scandal. It’s about time we raised the lowest common denominator and refused to let legitimate political discussion (of which there is precious little these days) take a back seat to the gossip mill and public outrage at relative trivialities.
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December 5, 2009, 4:30 pmDavid Bernstein says:
Given that my post had absolutely nothing to do with Ensign, and I’ve expressed no opinion on Ensign’s behavior, and I didn’t claim to be judging Baucus’s behavior on a standard relative to that of his colleagues, as opposed to it just being objectively unethical, I don’t see what knowledge of Ensign has to do with anything. If I wrote, “Jennifer Conley is very attractive,” and then acknowledged that I have never seen a picture of Bar Rafaeli, it would be completely illogical to say, “you can’t possibly have an opinion about Jennifer Conley if you’ve never seen Bar Rafaeli. That’s like having an opinion about Mark McGuire when you’ve never heard of Babe Ruth.”
Now that I’ve been made aware of the Ensign matter, I’d say that if he used or attempted to use any public resources to pay off his lover’s husband, he should resign. Sleeping with another man’s wife, and using a “supporter” to give him a job (what will be the “pro quo” for this “quid”) is unethical. Kind of reminds me of how Clinton tried to use one of his donors to buy off Monica Lewinsky.
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December 5, 2009, 4:37 pmDavid Bernstein says:
Oh, please, I basically said that I may have vaguely heard of Ensign, but not enough to say what state he’s from, or, I’ll add now, to have named him offhand if you asked me to name as many Senators as I can. I have better things to do (or at least things that interest me more) than to follow the daily goings-on in the Senate. What different does it make to me or anyone else if I know anything about Ensign? I don’t claim to be a political reporter, a political junkie, a fan of politics, or an expert on politics.
If I wrote a post on Tiger Woods’ recent scandal, but also admitted that I couldn’t name another professional golfer (I can’t) or for that matter who won the Super Bowl last year (no idea), would that somehow invalidate my ethical judgment of Mr. Woods? I’m glad you’re a fan, but don’t confuse your own preoccupations/hobbies/interests with what it takes to be an educated or informed person.
“Be careful about pointing fingers at someone for being unqualified to be a US attorney.”
Who said I thought I was remotely qualified to be a US attorney? If any Senator ever appoints me to be U.S. attorney, I’ll guarantee you I’m sleeping with him/her (and that I’ve lost my mind, because it would be completely contrary to my personality to want such a job).
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December 5, 2009, 4:42 pmArthurKirkland says:
1) Sen. Baucus exhibited exceptionally bad judgment in recommending his bedmate for United States Attorney.
2) Her resume appears to compound the problem.
3) If he did not disclose the personal relationship to those who would consider his recommendation, his conduct should be investigated formally and might warrant a resignation. It would probably be tough to walk past Sens. Vitter and Ensign on the way out, but ‘he did something just as bad’ has never been my favorite excuse.
4) It has been disappointing to observe an increase in the volume of posts by Conspirators that consist of crudely fashioned, crudely aimed, partisan firebombs.
5) I believe Babe Ruth to be the greatest baseball player in major league baseball history, by a substantial margin, much of which consists of his pitching.
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December 5, 2009, 4:45 pmGlenn Bowen says:
Mrs. Hanes represents the crotch of the problem... looks like ol’ Max fell for one of the older ones in the book.
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December 5, 2009, 4:46 pmCornellian says:
If the relationship was disclosed and she really is qualified, then I don’t see this as a big deal — people recommend their friends and relatives all the time, the White House is free to reject the recommendation if they have some anti-nepotism rule. If he had sent the White House a letter saying “my wife is a highly qualified prosecutor and I think she’d make a great U.S. attorney” I wouldn’t have a huge problem with that and I don’t think the fact that Hanes is a girlfriend rather than a wife makes any difference.
If the relationship was disclosed and she really isn’t qualified, then Baucus displayed bad judgment in recommending her.
If the relationship wasn’t disclosed, then Baucus displayed really bad judgment in recommending her.
Should he resign? As a pure political calculation, if I were him I wouldn’t resign. It’s a long, long way to 2014, a lot can happen in the meantime and if Vitter can survive his prostitute/diaper fetish, Baucus can certainly survive this.
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December 5, 2009, 5:05 pmSgtDad says:
I think the resort to argumentum ad hominem is unfortunate. Just what constitutes political corruption and what is tolerable in a free society is a good debate to have. Condescending comments about Prof. Bernstein or other commenters just gets in the way. So, cut it out, already.
As for Sen. Ensign, until recently, I had not heard of him, either. And that is despite several business trips to or through NV. One should never assume that everyone is a political junkie. The fact is, the senators from my state are nearly invisible. They are almost never mentioned in the press, still actually quoted. I suspect there are other states where this is true, as well.
On the topic of USA’s, I am amazed at how little most people know. The USA is a political appointee who serves at the pleasure of the President. The USA is not a policymaker. I mention this because one of the USA’s fired by Pres. Bush wrote a book & came to my city to flog it. He told the audience that the President could not fire a USA without due process, etc. That ignorance alone would have got him fired by me.
And therein lies the problem. Since senators have so much influence over who is nominated, it is no surprise that political horse trading dominates the process.
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December 5, 2009, 5:05 pmMarc J. Randazza says:
I have better things to do (or at least things that interest me more) than to follow the daily goings-on in the Senate.
Apparently not, since this “scandal” was worth enough time from your busy day to warrant a post dripping with outrage.
I just don’t see what the big “scandal” is.
Unless her CV is a complete fabrication, she’s got 15 years of prosecutor experience, 4 years of private practice, and 7 years working for the Senator, with no disclosure of how many of those seven years were polishing his knob. Nevertheless, lets take a look at most AUSA’s and see how much experience they have.
Or again, take a look at your own CV. Two years of litigation experience is sufficient to teach others how to be a lawyer, but 15 years as a prosecutor and she’s not qualified because she spread her legs for the guy who put her up for the job?
Not to rip on you... you’ve apparently risen to the challenge of your position. But, Kirkland is right when he calls this a crudely fashioned, crudely aimed, partisan firebomb.
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December 5, 2009, 5:05 pmDavid Ross says:
Ah hell, I’ll put my oar in — Max Baucus is a gay-baiter. 2002 Senatorial campaign, against Taylor (R). He forced Taylor out of the race due to Taylor’s association with a hair salon in the 1970s.
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December 5, 2009, 5:06 pmpelicans says:
I can’t help but be curious about her current job. I lived in the DC area a couple of years ago while working at an area law school, and there seemed to be an unbelievable number of well qualified lawyers for all of the mid-level and above law jobs with the federal government. In fact, based on the graduates from the school I worked for, I would say getting an entry level job was mighty tough and competitive. Based on what I’ve read, I guess she just had better luck than most in landing what sounds like a pretty decent law job in Washington when she moved there.
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December 5, 2009, 5:19 pmArthurKirkland says:
Ms. Hanes’ resume strikes me as relatively thin for a U.S. Attorney candidate (even in Montana, where it might be difficult to find a half-dozen strong candidates, let alone those who would be willing to take the job), although some candidates are stronger than their resumes (especially if they are self-made). Some people with lesser resumes attract attention, and deserve it, because of exceptional judgment, intellect, work ethic, or the like. But that prospect is diminished by the likelihood that something else attracted the senator’s attention.
For those reasons, the Baucus camp’s claim that she is exceptionally well qualified places the senator in even lesser light.
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December 5, 2009, 5:20 pmSgtDad says:
Mr. Randazza:
So, I put it to you: Why has this lawyer not been disbarred? 15 years experience withholding discovery from the defense and conflicts of interest with material witnesses does not strike me as a good reason to be appointed USA. My grandfather practiced in Montana, a long time ago. This would not do by his lights. I guess it’s OK for the citizens of Iowa; a pity, that.
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December 5, 2009, 5:29 pmneurodoc says:
Professor Bernstein, if you’d read to A12 of today’s NYT, you would be pretty much up to speed on Senator Ensign’s troubles. To be more fully informed, though, you’d have to go back further to learn the details, including how snake-like Ensign was in going after the Hammond’s wife, Ensign’s membership in The Fellowship, and the “counseling” Ensign got from his colleague Tom Coburn, who envoked both priest-penitent (ordained minister) and physician-patient (obstetrician) in refusing to discuss that counseling. (The Fellowship, to which Sanford of South Carolina also belongs, is a bothersome element to it too.)
http://thecaucus.blogs.nytimes.com/2009/12/04/ethics-committee-issues-subpoenas-in-ensign-inquiry/?scp=3&sq=john%20ensign&st=Search
And on A12, you would also see that a true antisemite, Malik Shabazz, leader of the New Black Party for Self-Defense, has “defended Attorney General Eric H. Holder Jr and a decision by the Justice Department to drop a voter intimidation suit against the group.”
Ben, I think you understate the gravity of Enisgn’s transgressions and their consequences. That he had an adulterous affair is the least of it.
Guy, I am reluctantly inclined to agree with you about what may be seen as purely “personal” misconduct like that of Vitter. I don’t know that Craig shouldn’t have continued in office until the next elections, if he could have stuck it out, but it was revealing that someone as loudly socially conservative as he should be cruising in an airport men’s room. (Bob Bauman, a conservative Catholic representative from the Eastern Shore of Maryland, married with children, was similarly outted 20+ years ago.) What’s the “diaper” thing, his sexual fetish? (Do we want political reps who take the submissive role in bondage or dominatrix relationships?)
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December 5, 2009, 5:34 pmDavid Bernstein says:
Pelicans, I never said she wasn’t qualified. In fact, I’d say she’s at least marginally qualified, maybe more than that, though the Eighth Circuit opinion raises questions about her ethical standards, which is a separate issue from qualifications. I did say (a) that you don’t normally expect AUSA’s to be people who haven’t practiced law in years; and (b) even if she was the best person for the job, it’s improper for Baucus to put her name in contention.
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December 5, 2009, 5:34 pmneurodoc says:
While directing attention to her time as a prosecutor, some should also go to her ex-husband, who it sounds like is an incompetent and/or dishonest physician (forensic pathologist?). Terrible injustices can be effected by both prosecutors and medical examiners, and that Hanes/Bennett pairing seems to have produced a synergy of the two.
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December 5, 2009, 5:40 pmSgtDad says:
neurodoc:
You are right about Bennett and that makes it even worse.
And you are right about Ensign, as well. The only thing to add is, T’was ever thus.
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December 5, 2009, 5:47 pmHeh says:
I pretty much follow football and hockey, but today I saw a post on Instapundit about women being barred from an olympics ski jump event. Again, I know little about it, but having seen it I thought it was a dumb move by the olympics committee and posted about it to my friends list.
I fail to see why one has to have prior knowledge to see a situation and desire to say something about it.
But I think that’s the crux of the issue. Back in the day, a professor of mine lectured us that “It’s not really impropriety itself; that can be caught. It’s the APPEARANCE of impropriety that must be avoided.”
Legal or not, permitted or not, the appearance of impropriety is usually strong enough that it often dissuades this sort of thing. But when it’s hidden? That pretty much doubles that appearance. Now there’s both the question of “why did they get the nod?” as well as “why wasn’t this disclosed?”.
Well, one doesn’t have to be an expert in a field to teach that field (and of course, I’m sure a law professor doesn’t teach you to be a lawyer, he teaches you about a specific subject of law). I have a good friend who has taught physics for 10 years now at a university. He originally started as a TA while majoring in CS. He’s never “practiced” physics (though he did end up with a double major in CS and physics), but he’s an excellent teacher of it by all accounts :)
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December 5, 2009, 5:51 pmDave N. says:
Those of you arguing, “The President appoints USAs, so this is no big deal” do not understand the concept of senatorial courtesy.
While the President officially nominates both the USAs and the federal judges from the various states, the reality is that the senior Senator from the President’s party (such as Baucus in Montana) has an effective veto over the selections.
The President generally has a list of 1–3 names that he can nominate without that Senator effectively vetoing the selection. Guess where the list comes from?
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December 5, 2009, 5:54 pmGuy says:
To be fair to Baucus, it worked. What’s next, are we going to criticize the push-polling helping Bush by talking about McCain’s “illegitimate black child”?
Maybe I did overstate my case. I do think where we have actual corruption/misuse of public resources, then it is of public interest. This case with Baucus nominally falls into that camp, though I suspect the fact that the malfeasance was sexual greatly magnifies it’s significance in a lot of people’s eyes, and also greatly magnifies its media attention. Larry Craig’s hypocrisy was certainly extreme, and I don’t doubt it demolished support from his base while hardening opposition from the other side. I also think it was worthy of media attention for showing the pernicious effect homophobia, including internalized homophobia, still has on our society and the role it plays in the making of public policy, but to be honest I’m not sure he needed to resign. At the end of the day he was just one more Republican willing to vote against gay rights. Politically, it was probably the best move for the right, can you imagine the attention it would have gotten every time Craig supported another anti-gay measure?
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December 5, 2009, 6:03 pmMarc J. Randazza says:
Sir, you raise a great point. I can only say that in my experience, neither judges nor the bars of any state really have any balls when it comes to dealing with lawyer misconduct. I’ve busted opposing counsel blatantly lying in court and in writing. It takes a hell of a lot more than withholding discovery to get disbarred. And, I’d imagine that your grandfather’s Montana bar would be similarly gelded in the face of such conduct. Maybe not though.. I am not a member of the Montana bar, and have no experience with it...
I’m not saying that judges and the bar shouldn’t be more mindful of such issues, but sadly they are not.
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December 5, 2009, 6:04 pmDavid Nieporent says:
The other difference, obviously, is that Baucus presumably didn’t disclose she was his bedmate, while I think even the dumbest person the planet could figure out Strom Thurmond Jr.‘s political connection.
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December 5, 2009, 6:09 pmMarc J. Randazza says:
This is one of my deep critiques of legal education... but, occasionally the “never did jack as a lawyer” becomes a great professor. (I’d say that both Bernstein and Volokh fit that description).
My point was not to slap Bernstein for being a two-year lawyer who became a prof though. My point was that a guy with two years’ experience grew into his chair rather snugly. Accordingly, why is this AUSA candidate unqualified? In a DOJ that hired Monica Goodling, Mary Beth Buchanan, and Brent Ward, I’m just failing to see why this is so “scandalous” that some guy nominated his girlfriend for a job that she seems to be quite qualified to do.
I’m not saying that she’d be my first choice. But, come on, hasn’t everyone recommended a girlfriend or a boyfriend for a position for which they might be qualified. So what if you know them because they went down on you. It might be different if she didn’t fit the mold, but 15 years as a prosecutor and then 7 years paying her dues to her political benefactor ... that looks like a path to an AUSA job to me, whether she was cleaning his trailer hitch in the process or not.
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December 5, 2009, 6:11 pmpireader says:
Professor Bernstein —
So you were serious about that?
Yes, I was serious. And you’ve given a serious reply. Thanks for engaging on the substance.
If, for example, a politician gets his son-in-aw appointed to a position and he does, say, 80K worth of work, but a better-qualified but less connected individual would have done 120K worth of work, the politician has essentially stolen 40K from the public to satisfy help his own family ... If the appointee is a mere political ally, one can dismiss concerns with one’s nose held as “that’s how politics works in this country.”
This ignores the basic reason why political leaders put their family, friends and supporters into key jobs, rather than doing a pure talent search — loyalty. They need loyal people to make anything happen. Jack Kennedy didn’t make his brother Attorney General because Bobby needed the money. He did it because he wanted a loyal guy in the job.
Conversely, the coin that buys loyalty is reciprocated loyalty; so a sensible politician advocates for his friends’ and supporters’ career aspirations.
That’s not unethical. To the contrary, it’s key to effective government. (At least in limited doses ... which is why the Federal government has a few thousand political appointments and millions of non-political positions.)
If one, however, is appointing one’s lover, you don’t even have that excuse, it’s pure use of the public fisc to give a gift to a paramour.
I think you’re mis-reading the sitiuation.
If Ms Hanes were a 28-year-old bimbo whose main qualifications were looks and accessibility [“I can’t type. I can’t file. I can’t even answer the phone.”], then I might share your view.
But she’s not. She’s worked in politics and government for decades, including working for Baucus for several years. Any new administration looks to their party’s Congressional members and staff as a source of personnel. And they’d expect a good staff member to have her Senator’s support.
In short, Baucus would have supported her career ambitions because she was a senior staff aide. Is he supposed to withdraw that support because they’re now lovers?
If his version is accurate–that he had a third-party prepare a list of three candidates and submitted it unranked–then I don’t know what’s unethical about his behavior.
And by the way, I don’t know Baucus or Hanes, don’t work on Hill and don’t support Baucus politically. I just think you’re over-reacting here.
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December 5, 2009, 6:20 pmSeamus says:
I’m with Cornellian here: contrary to what the NYT story says, senators don’t nominate U.S. attorneys; the president do. And while Baucus, as a senator, gets to vote on confirmation of the president’s appointment, he’s only one of 100. What appears to have happened is that Baucus recommended to the president (or to one of the president’s underlings) that his girlfriend get nominated. I would presume that before the president actually sent this nomination to the Senate, it would be thoroughly vetted, and he’d have to be persuaded that Hanes was worthy of the nomination (and that it was worth risking the flak that would be thrown up once it was known that she was banging Sen. Baucus). So I don’t think this is a big deal.
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December 5, 2009, 6:21 pmJW says:
I certainly hope that the system of patronage is dead in this country. We reformed civil service on the principle that the meritorious, not the victor, gets the spoils. And certainly not the victor’s lover.
Even if she were qualified — and I’m not one to judge — it’s the job of a Senator not only to make laws, but to set an example for others in public service. Baucus is one of a hundred very privileged men and women. He must avoid, to a fault, the _appearance_ of supporting a system of patronage. If somebody of his prominence gets off scotch-free for this apparent impropriety, it will set an ugly precedent at a time when a large majority of Americans have exceedingly low faith in the quality of our politicians (specifically Congress).
I am not sure that he should resign; I am sure that this action should be universally condemned and that our legislators should be held to a high standard of public conduct.
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December 5, 2009, 6:26 pmMarc J. Randazza says:
Didn’t she withdraw from consideration before this even became an issue? What’s the tantrum about then?
I’ll tell you what the tantrum is about. There is a vocal and insane minority that is losing its ever loving mind that there might be healthcare reform in this country, Baucus is a leader in the healthcare reform movement, and this is a mudslinging tantrum being thrown to try and derail that effort.
I’m not educated enough about healthcare reform to grind an axe on that. Maybe it would be the end of the world if there was a public option. I don’t know. I don’t really care about the issue, strangely enough.
But, i would hope that any reader (let alone a writer) for this blawg would be bright enough to see through that.
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December 5, 2009, 6:33 pmDon de Drain says:
Marc Randazza–
The biggest problem from my perspective is the failure to disclose the full extent of the relationship. When all the facts are out in the open, people can judge for themselves whether a particular person should be nominated for US Attorney. When the facts are not out in the open, and later become known, everyone wonders why it was that all of the facts were not disclosed. Not surprisingly, people draw adverse inferences from a failure to disclose material facts, especially facts dealing with intimate relationships.
Everyone does favors for their friends, especially on Capitol Hill. Doing this in the open is, as a general matter, not objectionable to me. The failure to disclose not only (at the very minimum) creates an appearance of impropriety, it also creates the opportunity for those with knowledge of all the facts to “exert influence” (using a benign term for actions that are not usually benign) over the conduct of those individuals who do not want all of the facts disclosed to the general public.
Since the name Strom Thurmond as come up, let’s focus for a brief moment on Sen. Thurmond’s out of wedlock daughter. It seems likely to me that there were third parties who (unlike the general public) were aware of Sen. Thurmond’s daughter (J. Edgar Hoover comes to mind). It is possible that these third parties used this knowledge to surreptitiously influence the conduct of Sen. Thurmond.
The same potential for surreptitiously influencing the conduct of public officials exists when Senators nominate for an important public office someone with whom they have an intimate relationship without disclosing the nature of that relationship. The same potential for surreptitiously influencing of the conduct of public officials existed, for somewhat different reasons, for Vitter, Craig, Bill Clinton, etc. etc. etc.
I would hope that you agree that the failure to disclose is a serious, serious problem, regardless of whether or not it violated any law.
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December 5, 2009, 6:47 pmCornellian says:
I certainly hope that the system of patronage is dead in this country. We reformed civil service on the principle that the meritorious, not the victor, gets the spoils. And certainly not the victor’s lover.
That is true for the vast majority of civil service positions, but not for a handful of very senior, politically appointed, positions, including US attorneys. For those positions it is expected that an incoming president will want his people in those positions, not his predecessor’s people.
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December 5, 2009, 6:47 pmJohn Oh says:
There is an inherent conflict whenever a senior person with control over a workplace has a romantic relationship with a junior person over whom the senior person has authority. Baucus says the relationship began in the summer. Who believes him? Hanes salary record at Legistorm shows she went from $53,000 in 2004 to $126,000 in 2008. How much did her promotions depend on her relationship with Baucus? Or maybe she really is a great senate staffer.
This should be a real problem.
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December 5, 2009, 6:50 pmMarc J. Randazza says:
I agree. I don’t think that this makes Baucus smell like a rose. And, I have some serious questions about his girlfriend’s conduct in Iowa. I’m just saying that the whining about this “scandal” certainly seems motivated by something other than a belief in ethics, openness, and full disclosure.
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December 5, 2009, 6:51 pmHeh says:
The issue doesn’t seem to be experience. The issue seems to be the concern over whether or not it’s proper for a senator to nominate to the president someone they’re having a sexual relationship with for a political-appointee position. Then it goes one further to the fact that this was a relationship which would not have been known to other senators/staffers or the public had the nomination progressed. Is it likely it would have come out? I’d like to hope so, but seeing how long some of these guys get away with this stuff I’m not so sure.
This goes back to what I said about even an appearance of impropriety. Elected officials above all should be staying out of this easy-to-avoid trap.
If you want to look at it from the other side, even the most qualified candidate that gets a position in this way will always have lingering questions and doubts about how they got the position. How can anyone ever be certain they got the position because of their qualifications and not because of their relationship with the one who nominated them? It’s easy to say that *SHOULDN’T* be the case, but I can’t remember seeing a case where it wasn’t :)
No, that’s the thing. “everyone” hasn’t done that. I can’t say if it’s the minority or majority position, but I know many who would, as I’ve said, avoid even the appearance of impropriety (from both sides of the desk).
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December 5, 2009, 7:07 pmDon de Drain says:
Marc J. Randazza–
I agree that much of the criticism of Baucus is motivated in part by partisanship (like the original post here). Plus there is the “press factor.” The best summary of this factor I have ever read was recently written by Matt Taibbi at the following link: http://trueslant.com/matttaibbi/page/2/ where he addresses the “media conspiracy” against Sarah Palin.
But the fact that David B just can’t find the time to learn anything about Sen. Ensign but has the time to learn and blog about Sen. Baucus, while professing to not follow politics, does not change the fact that Baucus deserves criticism.
The existence of David B’s biases, whether he acknowledges them or not, does not excuse Sen. Baucus’ conduct.
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December 5, 2009, 7:23 pmArthurKirkland says:
Perhaps I underestimated the original post: It appears to have been a showing spectacular enough to make the stage at a three-clown circus.
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December 5, 2009, 7:23 pmMarc J. Randazza says:
Agreed, but lets just look at the facts of the “scandal.” A guy recommended his girlfriend for a job. Someone else got the job in SEPTEMBER. It is a big freak out NOW? By a guy who wants to write on political issues, but can’t be bothered to know who John Ensign is?
Yes, Baucus deserves to be criticized for recommending his girlfriend for a job. I guess.
Maybe my perspective is a little skewed... I actually got laid in college (enough that I stayed there for seven years) and didn’t settle down and get married until I was 38. I’ve gotten job interviews set up by girls I was banging, and I’ve gotten bangees job interviews too. I never thought anything was wrong with it, and I still don’t.
I think it crosses a line if you bang someone *in order* to get a job interview. Or if you give someone a recommendation *just because* they are doing you.
But, if you’re a person who has a job that generally requires some degree of education, and you are sexually active, you’re likely to have a fair number of sexual partners who have some education and experience themselves. Why should anyone be disqualified from you saying they would make a good candidate just because they did you? And, are you obligated to say “hey, she would make a good candidate ... but by the way, she sure gives great head too ... and I oughta know!”
Come on... really?
Its a dumb thing to harp on... and I think that if Mr. Baucus was not on the front lines of the health care debate, he would be as obscure to Mr. Bernstein as Mr. Ensign is. And this “story” is about as newsworthy and as classy as the Tiger Woods coverage.
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December 5, 2009, 7:45 pmDavid Bernstein says:
Baucus is on the front lines of the health care debate? Actually, I knew that, but only because after I wrote the original post, I read some other commentary on Baucus that noted this.
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December 5, 2009, 8:02 pmOff Kilter says:
“But I suspect that if I knew more of what went on behind closed doors in the Senate, my reaction would not be that this absolves Baucus, but that more Senators should resign, not that Baucus should be off the hook.”
AP release, Washington: “Both remaining members of the Senate resigned in disgrace today when...”
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December 5, 2009, 8:05 pmDavid Bernstein says:
U.S. attorneys are among the political appointees who one would least want to feel loyalty to, and especially act on loyalty to, their patron Senators. These guys and gals (like all prosecutors) have an awful lot of power, that can easily be abused, misused, or not used when it should be. To what extent the need for “loyalty” forgives what would otherwise appear to be corruption is a fair question; but the answer with regard to U.S. attorneys is that they shouldn’t be “loyal” to anything but the law and the Constitution.
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December 5, 2009, 8:09 pmMarc J. Randazza says:
I could not agree with you more.
However, I’m much more comfortable with an AUSA who is loyal to someone because she’s doing him than an AUSA who is loyal to her “imaginary friend”. Jesus Christ Dave, in an office that tolerates zealots and hacks like the U.S. Attorney’s office... if this kind of thing gets your hackles up, then PLEASE turn some of those fantastic research and writing skills into knives with which you dissect the entire DOJ. I’d love to see you rip into the real hacks in that department.
If this is the catalyst for your interest in doing so, then it is a positive thing after all.
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December 5, 2009, 8:13 pmStrict says:
Mr. Bernstein,
I didn’t mean any disrespect. I guess I was surprised that you never heard of him, considering that Ensign is (1) famous, (2) a top leader of the Republican Party and (3) in the Senate because he beat a guy named Bernstein.
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December 5, 2009, 9:00 pmDavid Bernstein says:
Really? Off with his head!
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December 5, 2009, 9:01 pmLetalis Maximus, Esq. says:
The problem in DC is rarely what is illegal or unethical. The problem is much, much more often what is legal and ethical. The damn place is chock full of questionable relationships. It is how the town is run.
I am personally familiar with a situation a few years back where a powerful lobbyist had a girlfriend as the head of a prominent office in one agency, a former staffer as the head of a prominent office in another agency, and yet another former staffer in as the head of a prominent office in another agency. All three owed their jobs to the lobbyist. Of course, whenever his business came to the girlfriend’s agency, she recused herself from the matter — and her deputy (who she appointed to that job and who was also one of the lobbyist’s former staffers) handled it.
Cozy, huh?
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December 5, 2009, 9:10 pmStrict says:
Yeah, it was this Bernstein.
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December 5, 2009, 9:38 pmEH says:
Letalis: Absolutely the regulations concerning such structures and relationships are too permissive. Lobbying should be a radioactive profession. In a country where money = speech, the revolving door is extremely corrupting. I think anybody affiliated with lobbying should have a 10 year moratorium in receiving and/or distributing tax dollars for any professional purpose, i.e. working as government staff, unless they are elected to office.
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December 5, 2009, 9:43 pmbillo says:
Conflicts of interest are not always bad. I remember once I worked with a certain scientist for a year helping him with a project on the understanding that if he got a grant, I would be the co-principle investigator. Sure enough, after over a year’s worth of collaboration, he got the grant. He called me up and told me that he had decided, however, to not make me a co-PI because I already had other sources of funding and he needed the money “to put his daughter through college” (this was a small-business grant, not an academic grant). I was furious, considering this a profound betrayal.
A little later, the program manager of the granting agency called me and asked me to be a reviewer on some grants. One of the things he wanted me to do was review the progress on the grant I was cut out of. I laughed and told him I would recuse myself from this particular grant — as far as I was concerned, this guy was an unethical prick, could kiss my ass, and I believed he didn’t have the competence to fulfill the conditions of the grant on his own. The program manager laughed and said he *still* wanted me as a reviewer.
“You’ve got to be kidding” I said, “I am furious at this guy and think he has no ethics whatsoever.”
“That’s fine,” he replied “I want you as a reviewer because I know that you will do your best to find any errors he makes and be as critical as possible. I’ll just read your comments knowing that you are biased against him, and ignore most of it.”
“Well, OK,” I said, “As long as you know that I’m not pretending to be fair here.”
“No problem.”
And, sure enough, that’s what happened. I tried to be fair, but had no qualms about being as critical as possible, and the manager “rephrased” my comments to allow the grantee to respond. I loved the look in they guy’s eyes when he saw me across the table at his one-year review...
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December 5, 2009, 9:48 pmneurodoc says:
I think a much greater subject matter expertise vs practical or “clinical” skills disconnect is possible and common in law schools than in medical schools, except where “adjunct” faculty are concerned in the former. (The adjuncts are usually the ones who do it day in and day out in the real world for a living.) It is possible for someone to be a medical school professor in a clinical speciality and have gone off into a narrow area of research years before and no longer be very clinically competent, but most medical school professors are practicing in their specialities and clinically competent, having completed years of clinical training at progressively higher levels in the course of residencies and fellowships. On the other hand, one can be a law school professor with no practical experience of the law, even the subject they are teaching, only scholarly accomplishment, that is “book learning” if you will. A professor who teaches property may know more about the subject matter of property, and be very well qualified to teach it to students who will graduate and go on to learn the practical stuff from mentors and/or OJT.
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December 5, 2009, 10:29 pmGringo says:
Five points well put. Much as it pains me to agree that a Yankee was the greatest baseball player in major league history, he was– in large part due to his pitching for my beloved Red Sox.
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December 5, 2009, 10:59 pmBruce Hayden says:
I am not the least bit happy with the level of corruption that we see in our government these days. Someone suggested that putting your friends and supporters in positions like this is what makes the system work. Yeh, but I don’t like it, since it corrupts the system. Being on the right, my view is that there has been even more of this going on now with the Obama Administration and large Democratic majorities in Congress.
That said, I just can’t get excited here. Keep in mind that the primary credential for the woman who was almost the Democratic nominee for President last year, and is now our Secretary of State was that she was married to a powerful politician (and apparently slept with him at least once).
The U.S. Attorney position is political. I will bet that if you looked throughout the country, you would find plenty of them who had meager prosecution backgrounds before being nominated and confirmed. Not just this Administration, but routinely. Just look at all the former USAs who went on to higher office.
And the poster above who pointed to Senatorial Privilege is right — if you have Senators of the same party as the President in a state, they pretty much control who at least gets nominated. I think it is supposed to work that the opposite party Senators have some say here, but my impression is that in recent years, this has been observed more in the breach.
Finally, as to Ensign. Keep in mind that he is the “clean” Senator in Nevada. Of course, that isn’t that hard, when the other Senator is often called “Dingy Harry”.
But that does bring up the double standard — how many Democratic Senators have similar sexual problems that are hushed up by the media? I am thinking right now about a former Senator and Presidential candidate whose affair was apparently hushed up for a year or so, until exposed broadly by alternative media. How many girlfriends do you think that Saint Teddy (Kennedy) had during his long term in office?
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December 5, 2009, 11:41 pmBruce Hayden says:
<blockquote cite=“comment-701847“neurodoc: I think a much greater subject matter expertise vs practical or “clinical” skills disconnect is possible and common in law schools than in medical schools, except where “adjunct” faculty are concerned in the former. I would have to say that this is one of my biggest criticisms with law schools. And the problem with adjuncts is (at least as I understand it) a result of ABA accreditation rules.
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December 5, 2009, 11:44 pmCharles Kirtley says:
I am sure she is well qualified for several positions, had a lot of experience, and could provide many references. She might even know something about law.
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December 6, 2009, 1:08 amBob Stone says:
Time for the Dems to do the right thing: expel Baucus from the Senate. http://bit.ly/EthicsBob
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December 6, 2009, 2:54 amDavid Jack Smith says:
Notice how Bacaus uses the weasel word dating in relation to Hanes.
He only began dating the woman who had worked for him since 2002, after they both seperated from their respective spouses.
On the surface, this seems almost noble, no?
But in common parlance dating means a couple are prepared to be seen in public and, therefore, proclaiming their relationship to the world.
It does not mean they weren’t having sex on the side whilst both were still married.
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December 6, 2009, 5:50 amDavid Jack Smith says:
Sure, why not just get rid of that pesky 1st Amendment guaranteeing free speech, and the silly government not abridging clause.
Dude, that is soooooo 18th Century dead white dudeish.
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December 6, 2009, 7:19 amDandapani says:
Quid pro quo
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December 6, 2009, 10:46 amrarango says:
Oops–my bad re Baucus party affiliation–Teaching point: never comment after two martinis
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December 6, 2009, 11:18 amManju says:
It still matters since it poisons the selection process. Baucus submitted 6 names to an independent reviewer who then picked 3 candidates to be interviewed by both Montana senators. That means a qualifyed individual last out on an opportunity to be considered because Baucus’ girlfriend took up the slot. Baucus then interviewed his own girlfriend.
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December 6, 2009, 11:57 amArthurKirkland says:
I doubt the relevant district could produce a half-dozen strong candidates.
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December 6, 2009, 2:42 pmSgtDad says:
That is pretty condescending and manifestly untrue. I know personally over ten Montana lawyers that would be strong candidates — and I live in another state.
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December 6, 2009, 3:42 pmpireader says:
Manju — “It still matters since it poisons the selection process.”
I think your logic is flawed.
You say the initial list had six candidates. Then the process was only tainted if Ms Hanes didn’t merit a spot on that list. But the independent reviewer ranked her in the top half of that list, so presumably she did deserve to be on it.
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December 6, 2009, 4:12 pmManju says:
or we could’ve stumbled upon a deeper scandel. How independent was the independent reviewer? were the other 3 canddiates just rubes to allow the gf to advance? Dis she lie on her cv, as davids evidence suggests?
Either way, the info should’ve been disclosed. Perhaps he should lose his charmanship.
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December 6, 2009, 6:30 pmArthurKirkland says:
I live in a district that is substantially more populous, and it has been difficult to find strong candidates in each of the most recent three searches. The departing USA was inadequate, the predecessor lackluster at best (one of each party). The person about to be named is nothing special. Most people with the the judgement don’t have prosecutorial experience, most people who would be good don’t want the job.
I guess it depends on the standard.
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December 6, 2009, 6:45 pmneurodoc says:
No one makes it to the US Senate who can’t figure that ruse out. Name no more than two winners at most, so that the preferred candidate will make the top 3 cut and the senator can claim it wasn’t a rigged game. And the name of the “independent reviewer” hasn’t been disclosed. (You don’t really think the “independent reviewer” might not have been “independent,” do you.)
Baucus might deserve to be a “charman,” but he’s a chairman and in no jeopard of losing his chairmanship. (Anyone think that Charlie Rangel should continue as a chairman for another day over in the House?)
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December 6, 2009, 6:55 pmmarkm says:
I’m afraid we’re long past that. In 2000, the presidential candidates were the son of a former President and the son of a former Senator — and I couldn’t see where either one of them was qualified.
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December 7, 2009, 6:33 amJP Dillard says:
What is even more interesting is that I telephoned the Billings Gazette newspaper (Montana’s largest paper) with this information last February. They refused to do an article, claiming that my story could not be confirmed. I suggested that they directly ask Baucus and Haines, on the record, if they were having an affair. Either they would get an affirmative answer, proving me correct, or they would have a Clinton moment of :I never had sex......” that would be played over and over now. In the interest of protecting Max, they declined to do the story.
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December 7, 2009, 9:10 amShorter Max Baucus (D, MT). - Redhot - RedState says:
[...] also The Volokh Conspiracy. I should also point out that a competent Washington press corps might have deigned to notice the [...]