Randy Cohen’s The Ethicist column in the New York Times responds to the following reader question:
While interviewing law students for jobs as paid summer interns and full-time associates for my firm, I noticed several had résumés listing their activities in the Federalist Society. Some of my partners have conservative views similar to those of the society, but I do not. These students’ politics would not affect their professional function, but my review is meant to consider their judgment and personality (though I don’t need to give reasons for the assessments given). May I recommend not hiring someone solely because of his or her politics?
NAME WITHHELD, GREENWICH, CONN.
Cohen concludes, fortunately, that the answer is “no.” He then adds this update: “Believing that all the applicants were qualified, but able to hire only a few, this person recommended rejecting each member of the Federalist Society.” Hat tip: ATL.
UPDATE: I urge all Federalist Society members working at law firms to take immediate counteraction. Specifically, if you are reviewing resumes of potential laterals and you come across a resume from Mr. Name Withheld from Greenwich, CT, don’t hire him.
troll_dc2 says:
I will repeat what I wrote on Josh Blackman’s blog when he posted this item:
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December 7, 2009, 5:06 pmMr L says:
UPDATE: Believing that all the applicants were qualified, but able to hire only a few, this person recommended rejecting each member of the Federalist Society.
As is often the case with these columns, Name Withheld wasn’t actually interested in advice — merely a plausible rationalization for what he had already recognized as unethical behavior.
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December 7, 2009, 5:09 pmTwirlip says:
The words “liberal” and “tolerant” seem to be antonyms. They almost all react to ideas differing from their own like vampires to garlic.
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December 7, 2009, 5:09 pmAnderson says:
I wonder what “ethical” means here?
There would be nothing unethical about the firm’s discriminating against Fed Soc members; I believe Thomas Sowell has written some spirited defenses of private discrimination. Some firms will prefer Fed Soc, some the opposite, some won’t care. Let the market decide.
However, the questioner had a duty to act in his/her firm’s best interests, and there is no evident reason why a Fed Soc member would not make a good lawyer for the firm. Hence, he/she may have voted against some good candidates to the firm’s detriment.
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December 7, 2009, 5:09 pmAnderson says:
The words “liberal” and “tolerant” seem to be antonyms.
Twirlip’s caricature of “liberals” is on approximately the same level as the letter-writer’s caricature of Fed Soc members.
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December 7, 2009, 5:11 pmOrin Kerr says:
Twirlip’s caricature of “liberals” is on approximately the same level as the letter-writer’s caricature of Fed Soc members.
Indeed. One hopes Twirlip is not a hiring partner.
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December 7, 2009, 5:14 pmgeokstr says:
I’m not very familiar with the Federalist Society, so I went to their webpage and here is their statement of purpose:
Of course, it would make sense to discriminate against anyone who holds to these principles. After all, they are pretty much the antithesis of everything the left holds dear.
Now, let me guess: to this author, listing membership in the ACLU, People for the American Way, and NARAL would definitely enhance one’s employment prospects. After all, anyone who actually thinks the Constitution is anything more than words on a piece of paper written by DWEMs, that mean things rather than whatever a judge can be found to say they mean, shouldn’t be allowed anywhere near the justice system.
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December 7, 2009, 5:15 pmMark N. says:
Taken more broadly, would you hold that law firms ought not to discriminate on the basis of politics for any politics? For example, I’ve heard that a lot of law firms unofficially discriminate against lawyers who have been members of groups seen as hard-left activist, like the groups of (mainly young) lawyers who provide legal services and advice to antiglobalization protesters.
(Not intended as a rhetorical/leading question; it seems like an interesting issue to me.)
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December 7, 2009, 5:19 pmMr L says:
Anderson — The unethical bit is where this guy is supplanting the hiring objectives of his employer with his own political biases. He’s quite clear that he finds the candidates qualified by the standards he should be applying and doesn’t even attempt to give a valid business reason why their politics should matter.
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December 7, 2009, 5:21 pmAnderson says:
Along Mark N.‘s lines, I think Cohen’s answer is overbroad. Surely we can all imagine *some* politics that would tend to disqualify a candidate?
“I assure you, my National Socialism won’t interfere with my job performance, Mr. — did you say ‘Cohen’?”
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December 7, 2009, 5:25 pmInteresting says:
Goodness, the way some people in the legal profession get the vapors over the Federalist Society really is funny.
Recall if you will, the drama that ensued when FS members were hired at the Civil Rights division, and one such misguided individual had a bust of President Madison in his office- surely Klan robes can’t be far behind.
Yeah. Funny how that works out.
Perhaps the name was withheld for good reason: while refusing to hire Federalist Society members may not violate federal law, some states do protect political association of people in the private sector (see this Louisiana statute).
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December 7, 2009, 5:25 pmPatHMV says:
Depends in part on the size and nature of the firm, I think. In a relatively small firm, it is important that individual partners and associates share at least some similar values and be relatively compatible on a personal level. If the law firm in question is dominated for whatever reason by liberal-leaning lawyers (perhaps the firm’s founders were notorious liberals or something), then I would think that screening out Fed. Soc. members would be a service to both the members and the firm.
Similarly, if the law firm is largely devoted to, say, criminal defense, or perhaps representing the poor and underprivileged as they fight to get benefits from the government, then perhaps again membership in Fed. Soc. would be a decent indicator that the person would not be a “good fit.”
But if it’s a larger firm, without such a specialized practice, then it would only be “ethical” to consider the membership in the Fed. Soc. if one is also assigning the same “all things being equal” negative weight to membership in the ACLU, the Equal Justice Foundation, the National Lawyers Guild, etc. That is, it might be legitimate in such a firm to exclude all those who show signs of wanting to be politically active in any way, but it would be unethical to use one’s position on the hiring committee simply to perpetuate one’s own political biases.
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December 7, 2009, 5:26 pmruralcounsel says:
But it might be fair to warn the applicants that some partners had such poor judgment and shaky ethics that they actually considered discriminating on that basis.
Sort of a consumer warning label, if you will. Because I have a hard time seeing a long term collegial and cooperative work environment for anyone in a power-deficit position with this person, should they hold different political views.
Shame his conservative partners didn’t think of it before he was hired.
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December 7, 2009, 5:27 pmAnderson says:
The unethical bit is where this guy is supplanting the hiring objectives of his employer with his own political biases. He’s quite clear that he finds the candidates qualified by the standards he should be applying and doesn’t even attempt to give a valid business reason why their politics should matter.
As I said, his/her duty to the firm makes that a no-no.
But I don’t see the argument against the firm’s choosing to discriminate vs. politics it dislikes. If the firm prefers to place its political values above its financial well-being, then it’s free to do so ... right?
IIRC, Sowell has argued that private businesses should be free to racially discriminate vs. customers, on the theory that those who discriminate are hurting themselves financially. I don’t share his opinion, but I take Sowell to be someone likely to be considered a valid authority by those in the Fed Soc.
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December 7, 2009, 5:28 pmbob says:
People should be able to hire whomever they want, for whatever reason.
That’s the libertarian position.
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December 7, 2009, 5:30 pmKazinski says:
It seems that the reviewer is abrogating his fiduciary duty to his employer by artificially reducing the pool of qualified candidates. I would be putting my own job at risk if I did a similar screen when reviewing resumes where I work.
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December 7, 2009, 5:32 pmRequired says:
Huh?
I can see some benefits law firms not being a good fit with Fed Soc members, but could you explain to me why a Fed Soc member would be a poor fit for a crim law firm.
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December 7, 2009, 5:32 pmPatHMV says:
bob, that’s the libertarian legal position, and certainly the right position. As a private actor, if the firm wants to engage in viewpoint discrimination against those it doesn’t like, it is legally free to do so. Whether that practice is ethical or not is another subject entirely.
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December 7, 2009, 5:34 pmPatHMV says:
Required, while there is certainly plenty of diversity of views within the ranks of the Society, my gut feeling is that the “law and order” types would outweigh civil libertarians and libertarians generally. You’re much more likely, for example, to find someone arguing against incorporation of certain portions of the Bill of Rights against the states at a Federalist Society meeting than at an ACLU gathering.
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December 7, 2009, 5:37 pmSteve says:
I think the idea is about as reasonable as recommending that somebody not be hired because of their membership in the Black Law Students’ Association.
I am the token liberal at my firm so if we ever got an application from a Federalist Society member, they would probably make me interview him just for kicks.
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December 7, 2009, 5:40 pmrarango says:
I second Bob’s comment–Isnt the ultimate issue a classic libertarian position?
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December 7, 2009, 5:40 pmAJK says:
And I haven’t heard anyone arguing that the firm doesn’t (or shouldn’t) have the right not to hire those applicants — only that it’s an unethical thing to do.
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December 7, 2009, 5:41 pmrarango says:
PatHMV–for my own edification, is the an operative code of ethics that governs hiring? In the absence of such a code, how do ethical considerations apply?
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December 7, 2009, 5:43 pmTwirlip says:
No, it actually isn’t, for a large number of reasons which should be blindingly obvious to anyone with a minimal level of English comprehension. For instance, unlike the letter writer, I have never refused to hire somebody on the basis of their political views.
That aside, I’m really impressed by the way you came down like a ton of bricks on the liberal bigot in question.
At least, I’m sure you are going to do that once you get through speculating about my activities.
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December 7, 2009, 5:44 pmtroll_dc2 says:
In states that ban discrimination on the basis of engagement in a lawful activity, Mr. Name Withheld would be violating the law.
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December 7, 2009, 5:44 pmAnderson says:
Whether that practice is ethical or not is another subject entirely.
I assume that libertarians believe in libertarian ethics?
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December 7, 2009, 5:45 pmTwirlip says:
I would assume that liberals believe in liberal ethics, but I’d be frequently wrong.
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December 7, 2009, 5:47 pmTexas Lawyer in DFW says:
An interesting point.
I have twice in my life had job offers withdrawn because of my religion. In both cases I rather understood the decision and was gracious about it. I would not question the ethics of either firm.
As for the Federalist Society, I’ve walked by a meeting and they seemed like bright kids. I like the idea of federalism. Let states decide things like Marijuana laws and marriage and such, not the federal government. I’m not libertarian, but I could well support federalism in the initial case, and wish we had more of it.
Interesting stuff, though.
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December 7, 2009, 5:47 pmtroll_dc2 says:
That’s not a question of ethics. Rather, it is one of violating Title VII of the Civil Rights Act of 1964.
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December 7, 2009, 5:50 pmAnderson says:
For instance, unlike the letter writer, I have never refused to hire somebody on the basis of their political views.
And I’ve never invaded another country.
That aside, I’m really impressed by the way you came down like a ton of bricks on the liberal bigot in question.
Did I not? I said that he or she was breaching a duty to his/her firm.
To assume that it’s flat “unethical” for a firm (or solo lawyer) to take politics into account, however, is implausible. PatHMV, who I trust has not turned liberal all of a sudden, gave some good examples above.
If Joe Blow is a liberal who believes that liberal politics are virtuous and that the Fed Soc, by its opposition to “liberal” positions, is wicked, so that its members are by extension wicked, and if Joe believes that wicked people make bad lawyers, then how is it “unethical” for Joe Blow to discriminate vs. Fed Soc members?
Myself, I would disagree with Joe Blow’s premises, and probably would hope not to be stuck in any political conversations with Joe; but I don’t see the lack of ethics.
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December 7, 2009, 5:51 pmRequired says:
True, but I have never seen one argue that something hasn’t been incorporated, only that it shouldn’t have been. I imagine it might have an effect if you want to create Hail Mary defenses based upon convincing a trial court to create a new state right based upon the BOR, but if you’re making those kinds of arguments then you are just as likely to benefit from a Fed Soc member being able to argue that many federal crimes should not result in coviction as they are not properly matters of federal concern. If this is your concern, I’d dare say the average Fed Soc lawyer is more aware of the extent to which rights have been incorporated and how they apply than the average non-Fed Soc lawyer.
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December 7, 2009, 5:51 pmAJK says:
Yes, I really should have said “shouldn’t have that right”. I stand by my amended point.
I’d say a fundamental principle of libertarian belief is not using the law to impose personal ethical beliefs on others. I consider adultery to be quite unethical, for instance, but I’d never argue for it to be illegal.
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December 7, 2009, 5:53 pmAnderson says:
... I find myself running into the old problem of “morals” vs. “ethics.” Wrongly I suppose, I tend to think of ethics as “procedural” more than “substantive,” the latter being the domain of morality. Guess I’m more lawyer than philosopher.
Anyway, on my Joe Blow example, I would question Joe’s morals, but in this case at least, his ethics would seem to be acceptable.
(To forestall citations to Wikipedia or whatever, I realize that in the philosophical sense, “ethics” is largely synonymous with “morals”; I just don’t like synonyms.)
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December 7, 2009, 5:54 pmAnderson says:
I’d say a fundamental principle of libertarian belief is not using the law to impose personal ethical beliefs on others.
Okay, but refusing to hire someone is not imposing your beliefs; it’s more like declining to associate w/ that someone.
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December 7, 2009, 5:56 pmThe Awful Truth says:
To make what should be an obvious point: When viewpoint discrimination is practiced by liberals in the professions or academia it devalues their claims to be part of a meritocracy.
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December 7, 2009, 5:56 pmPaul Horwitz says:
Twirlip, I hesitate to point this out, but identifying one anonymous letter-writer who purports to be liberal and takes what one may well view as a foolish or wrongheaded position on hiring (or even identifying several such individuals) is not very strong evidence that you are not caricaturing liberals, especially when your initial comment was that “almost all” liberals occupy something like this position.
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December 7, 2009, 5:56 pmgullyborg says:
If all else is equal — grades, LSAT scores, selection of courses, recommendations from faculty, etc. — and the ONLY difference between 2 applicants is that one is ACLU and the other is FS, then it would make sense to hire the person who better fits with the group dynamic of the employer.
But how often are things THAT exact?
Also, as one of the 2 members of the FS in my class, knowing how hard it is to survive and thrive as a conservative in law school, I would say that a person who is FS probably has more skill and ability than a person who is ACLU with the same grades, etc. The level of discrimination (including literal death threats that had to go to the Dean) I put up with clearly hampered my ability to do well in the school.
But I am a damn right winger mouth breather, so obviously I don’t know anything.
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December 7, 2009, 5:59 pmAnderson says:
Geokstr’s comment provided a valuable quotation from the Fed Soc itself, including this:
Law schools and the legal profession are currently strongly dominated by a form of orthodox liberal ideology which advocates a centralized and uniform society. * * *
The Federalist Society for Law and Public Policy Studies is a group of conservatives and libertarians interested in the current state of the legal order. It is founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be. * * *
•This entails reordering priorities within the legal system to place a premium on individual liberty, traditional values, and the rule of law.
Question: on those principles and any others you may care to quote, would the Fed Soc support the right of law firms to discriminate against its members?
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December 7, 2009, 5:59 pmCato The Elder says:
Did you not remark here in passing that you were a plaintiffs’ lawyer?
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December 7, 2009, 6:02 pmCliff says:
I’m President of my Law School’s chapter of the Federalist Society. As far as I’m concerned, future potential employers can discriminate against me all they want based on that fact. They can also discriminate in favor of me if they approve of the Federalist Society (I’m actually counting on it). Or they can decide it makes no difference.
That’s free markets.
Now, does that mean it is a smart thing to do? Is it the right thing to do? That’s a different question. I don’t know. Conservatives are a lot more tolerant then liberals. Liberals would throw a bitch fit the size of Manhattan if someone were denied a job at a conservative law firm because they were ACLU members. Should conservatives discriminate against them? I don’t know. But I would like a little consistency.
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December 7, 2009, 6:06 pmtheobromophile says:
PatHMV: while you’re more likely to find law-and-order lawyers within the Federalist Society than outside of it, I’m not sure that you’re more likely to find those types within the organisation itself, rather than finding libertarians.
As a general point: while I do understand the desire to have law firms that work well internally, I would think that having lawyers who work well with clients would be (or at least should be) a larger priority. While a lot of lawyers lean to the left, the same is not true of the big clients of law firms. I cannot imagine, for example, an energy company really wanting to pay $500/hour to a lawyer who donates to the Sierra Club.
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December 7, 2009, 6:12 pmtroll_dc2 says:
Some FS members omit their membership from their resumes. Are they wise to do so?
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December 7, 2009, 6:12 pmYankev says:
What about National Lawyers Guild?
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December 7, 2009, 6:13 pmOwen H. says:
Of course, it sounds like a number here would consider it appropriate to refuse to hire someone based on their past work for the ACLU, not merely because it was the ACLU but also because “that’s what the liberals would do”. and it is therefore justified.
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December 7, 2009, 6:13 pmHume says:
“I assume that libertarians believe in libertarian ethics?”
Pretty sure there is no such thing. Libertarianism/anarchism is a political philosophy. Many libertarians/anarchists share the same political philosophy but disagree on its moral foundations (e.g., David Friedman vs. Robert Nozick vs. Jan Narveson).
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December 7, 2009, 6:17 pmBrian K says:
How does that differ from what conservatives are doing here?
OTOH, by ignoring reality you have given potential future employers a perfect reason to discriminate against FS members. i would assume (not being a lawyer) that real cases are argued in reality, not some magical conservative make believe land.
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December 7, 2009, 6:19 pmDangerMouse says:
Whether legal or ethical, this episode demonstrates the obvious necessity of conservatives keeping quiet about politics and religion at work. It’s just too dangerous. No one needs to know that you’re Catholic. No one needs to know that you’re pro-life. No one needs to know who you voted for. People get fired all the time for this, but always in ways that include plausible deniability. (Wasn’t a “team player,” etc.)
Since libs are so keen on suppressing beliefs that they disagree with (after all, they love speech codes and hate crimes that punishes thoughtcrime), you shouldn’t make yourself a target.
And of course employers fire people for their religious beliefs all the time. Anyone dumb enough to question a non-discrimination policy regarding homosexual rights, because of their religion, will be marked as not being a “team player” and will be fired at the first instance.
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December 7, 2009, 6:22 pmYankev says:
I don’t understand your comment. Does libertarianism purport to be an ethical system, other than as concerns under what circumstance it is ethical or unethical to use the power of government to coerce or deter private behavior? A libertarian may believe that it is unethical for the government to take money from me by force to feed a starving man, and at the same time and with perfect consistency believe that it is unethical of me not to give him food if I have the ability to do so.
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December 7, 2009, 6:23 pmSteve says:
Did you not remark here in passing that you were a plaintiffs’ lawyer?
A long time ago I did plaintiffs’ work; you may have misinterpreted a reference to that, or you may be thinking of someone else.
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December 7, 2009, 6:23 pmYankev says:
That’s mighty righteous talk for someone living on land taken by force from the Shawnee.
Or the Ojibwa. Or the Lakota or what have you, depending on where in these United States you live.
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December 7, 2009, 6:26 pmCrazyTrain says:
Who would want to work for a law firm where a partner seeks (essentially) legal advice re employment practices in an unprivileged communication with the NY Times? (And, trust me, you could compel the name of the person who wrote that.) Also, the partner has likely admitted (in an unprivileged setting) to actions that would make him and his firm liable — he has taken adverse employment actions SOLELY only account of political beliefs. I don’t know NY or Conn employment law, but that is definitely actionable in California. And I would be surprised if NY or Conn did not take the same view.
An enterprising person in the NY Attorney General’s office should subpoena the NY Times for the partner’s name. Wouldn’t be a bad political move — giving the office a chance to prove its “even-handedness” by going after bad liberals, and at very little actual political cost.
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December 7, 2009, 6:31 pmYankev says:
Question for you: what possible bearing does this have on the question of whether it is ethical to do so? If I found out that someone believes that it is ethical to do whatever the law allows, I would conclude that he must be a very wicked and amoral fellow indeed, and would do my best to avoid entering into a contract with him, relying on his word in general, or associating with him in any way.
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December 7, 2009, 6:31 pmPatrick216 says:
As a matter of law, viewpoint discrimination is permitted in most states. (Political party affiliation is sometimes protected under state law, but FedSoc is not a political party). So he’s legally allowed to do it.
I think you can ethically discriminate against FedSoc members. The case is that the firm is mostly liberal, and that having a politically active person with clashing viewpoints would create disharmony in the workplace. There are pro’s and con’s to that position, but it’s valid. But of course, that’s a policy-based determination that should be made more broadly in the firm than just based on the personal predelictions of the hiring partner.
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December 7, 2009, 6:34 pmMark N. says:
It seems to vary a bit depending on the philosopher. I agree plenty of libertarians see it as primarily a political philosophy, but people who self-identify as “anarchists” in particular, whether left-anarchists or anarcho-capitalists, tend to see it as more of an ethical philosophy, from which the politics simply emerges as one practical application. For left-anarchists there’s way too many examples to list (in fact practically all major works of left-anarchism are at least as much ethical ones as political ones), and on the right, folks like Murray Rothbard see it as largely an ethical system.
Of course, people with different ethics might agree on certain practical issues, but I’m not sure that’s particularly specific to libertarians or anarchists? Libertarians/anarchists also sometimes agree with liberals, or with conservatives, on question of political philosophy, depending on the issue, and often disagree among themselves.
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December 7, 2009, 6:35 pmYankev says:
Well, for one thing, no one is threatening to bring a lawsuit, or clamoring for new legislation. I’m curious to know the basis, though, for your charge that FS members live in an unreal world.
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December 7, 2009, 6:35 pmtroll_dc2 says:
Do you not see a First Amendment problem here?
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December 7, 2009, 6:36 pm1Ler says:
That is actually an excellent question. I think I side with Yankev on this: libertarianism (to me) deals with the right of a governing authority to coerce certain behaviors, not so much a personal ethics question. But it’s something I’ve never thought about much in those terms.
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December 7, 2009, 6:40 pmAnderson says:
Yankev, if the Fed Soc guy believes it’s not unethical to discriminate against him, then I think that’s an important fact re: the ethics problem.
Did you not remark here in passing that you were a plaintiffs’ lawyer?
In Mississippi, for instance, there are quite a few conservatives working the plaintiffs’ side of the bar. I had an engaging chat at Inns of Court one night with one such; he was a Republican plaintiffs’ lawyer, and I was a Democratic defense lawyer.
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December 7, 2009, 6:40 pmYankev says:
And how would the NYT know his name or who he was? Did he sign in at the front desk and speak with Mr. Coehn in person, or did he simply mail a letter signed with a psuedonymn? I don’t know either, but I can guess which of the two is more likely.
This is the same “ethicist”, by the way, who counseled another reader to fire her real estate broker because she and the ethicist did not approve of his religious beliefs.
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December 7, 2009, 6:41 pmSuperSkeptic says:
Right, but it begs the question of whether Title VII of the Civil Rights Act of 1964 is ethical.
Why not? It’s a breach of contract!
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December 7, 2009, 6:42 pmAnthony says:
So, I have a counter-question: let’s say someone lists ‘federalist society’ on their resume, and you approve of the federalist society. Is it acceptable to give that resume a higher recommendation than you otherwise would? If so, why does this differ from giving the resume a lower recommendation?
Now, when you’re writing a resume, you list things that you believe are relevant. Thus, you are implicitly accepting that people will judge you based on what is written on your resume. Under what logic is it unfair for some people to judge you negatively on something you offered to them as grounds to judge you? Remember, you had the option of not mentioning it at all.
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December 7, 2009, 6:42 pmAnderson says:
That is actually an excellent question.
I’ve been interested in the responses; I don’t see how it’s possible to have a bright line between politics and ethics/morals, tho perhaps belief in such a line is a libertarian tenet.
If libertarians, at the VC for instance, spent more time discussing Nozick & such instead of Ayn Rand, they might seem much more persuasive. Just sayin’.
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December 7, 2009, 6:42 pmAnderson says:
Now, when you’re writing a resume, you list things that you believe are relevant. Thus, you are implicitly accepting that people will judge you based on what is written on your resume.
Excellent point. I suppose the idea is merely that being “committed” to some legal-oriented activity is supposed to indicate greater smarts, seriousness, etc.
Compare Allan Bloom on sincerity/commitment in The Closing of the American Mind (I cite from memory, it’s been years since I last read that). In that light, kinda ironic.
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December 7, 2009, 6:45 pmCrazyTrain says:
No. A person has admitted to the NY Times that they engaged in adverse employment action solely to discriminate against someone on the basis of their political beliefs. Assuming that is illegal and tortious under NY law (it is under California law), the Attorney General’s office has a right to investigate it and use processes available to it to do so. Substitute “Jew” for “member of the Federalist Society” and I don’t think we’d have a problem with the AG using processes available to him/her to investigate the matter.
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December 7, 2009, 6:45 pmDilan Esper says:
I cannot imagine, for example, an energy company really wanting to pay $500/hour to a lawyer who donates to the Sierra Club.
As usual, there are more things in heaven and earth than are dreamt of in your philosophy, Theo.
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December 7, 2009, 6:47 pmDilan Esper says:
By the way, am I the only person here who has been a member of both the ACLU and the Federalist Society?
(Contrary to the image some people have of the national organization, my experience in law school was that the Federalists sponsored the best debates of any student organization and were mostly interest in batting ideas around rather than imposing any sort of a robotic conservative orthodoxy. I was far from the only liberal member.)
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December 7, 2009, 6:49 pmtroll_dc2 says:
SuperSkeptic, your question (about whether Title VII is ethical) goes to my grievance against so-called libertarians–they have precious little sense of history. Yes, the law impinges on your freedom to discriminate, but on the other hand it increases the degree of freedom for the beneficiaries (blacks, women, Jews, Hispanics, etc.). Libertarians all too often look at one side of the equation only.
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December 7, 2009, 6:51 pmBrian K says:
1) its been ONE day!
2) several people above have mentioned the lawsuits should be brought
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December 7, 2009, 6:52 pmSuperSkeptic says:
Dilan, I attended meetings and events of both, but neither had me as a member on paper, for reasons that are the subject of this post.
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December 7, 2009, 6:53 pmThe Awful Truth says:
Why does the New York Times have an ethicist? Isn’t this like the KKK hiring a diversity officer?
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December 7, 2009, 6:56 pmBlue says:
The ethical obligation that the lawyer has is to his firm. As long as he was upfront about his selection criteria–including to his conservative colleagues–I don’t see any ethical issue with his actions.
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December 7, 2009, 7:01 pmAnderson says:
my experience in law school was that the Federalists sponsored the best debates of any student organization and were mostly interest in batting ideas around rather than imposing any sort of a robotic conservative orthodoxy
Ditto.
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December 7, 2009, 7:03 pmAnderson says:
As long as he was upfront about his selection criteria–including to his conservative colleagues
Permit me to doubt!
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December 7, 2009, 7:09 pmMalvolio says:
Is there such a state?
I don’t understand the decision! What, you’re a Jehovah’s Witness applying to work in a blood bank? (Good thing you were gracious about it though. “There’s no reason we can’t be civil, is there?” — King Leonidas in 300)
A publicly-held firm has the duty to act in the best interests of its stock-holders, which I would think in most cases mean ignoring the political and religious position of applicants. An employee of a firm has a duty to carry out the policies of his employer (or resign).
New York has shield laws preventing this kind of thing. They don’t restrain the US Attorney for the Southern District of the New York, of course...
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December 7, 2009, 7:09 pmNevadausa** says:
The question, it seems to me, is not about “politics” at all. And by posing the question in that fashion, “name withheld” made the answer easy.
The harder question is whether declining to hire someone because they ascribe to a different interpretation of the Constitution than the hiring partner is “ethical.”
The Constitution is surely a political document. But I’ve never understood the Federalist Society to be advocating a political interpretation of the Constitution — in fact, that would be contrary to founding principles.
The Federalist Society’s Website says (abbreviating from a post above):
What exactly is the Fed Soc’s definition of “individual liberty”? Is that a fair inquiry in an hiring interview?
Does the applicant believe “individual liberty” is as broad as Ted Olson and David Boies contend in California, so that a state cannot bar gay marriage? Is that the kind of “individual liberty” free from government interference the Fed Soc supports?
And what of the “traditional values” of which the Fed’t Society’s creed speaks. Are these the traditional values that disfavor gay marriage? Or prayer in the class room? Or the right to freely associate in such a way as to permit a business owner to refuse to hire on the basis of race, religion, or nationality?
Do “traditional values” mean the trial of non-Americans in American courts under American laws for acts of violence against US Citizens, rather than summary lynchings — as was the law insofar as captured native Americans who killed settlers on the frontier was concerned. See United States v. Rogers, 45 U.S. 567 (1846).
Does “individual liberty” encompass actively opposing the state’s intrusion based on unreasonable searches and seizures that nonetheless were executed in “good faith”? Where does Fed Soc stand on the question of the 4th A’s “good faith” exception — which, as I understand SCOTUS’s decisions in Leon and Herring, does not turn on the reasonableness of the search or the legality of the warrant, but rather it is a legal principle created by the Supreme Court in 1984 to narrow the remedy of exclusion.
The same principle bars civil liability for executing an illegal search based on the doctrine of “qualified immunity” — a defense Congress did not include in 42 USC 1983. So a court’s decision to refuse exclusion on “good faith” grounds leaves the victim of an unconstitutional search with no remedy.
So how does one define the “rule of law” that judges must apply, and not invent, that the Fed’t Society wants to protect?
The principle of “immunity” for law-enforcement officials predated our founding. Blackstone’s Commentaries discuss it. But the framers of the Constitution say nothing about it. What should that mean.
And the Fourth Amendment is silent on the “National Security” exception — about which Orin has posted many times, arguing (as I remember) that the 4th A is focused on issues of law and order, not national security.
The 4th A was the product of British abuses — abuses by the Crown against domestic and foreign-born terrorists, including French operatives.
Does this history matter when discussing “individual liberty”?
I have spoken at Fed-Soc’y programs (not as a member), advocating the broadest view of individual rights and the narrowest view of the state’s prerogatives.
Others with whom I’ve sat take a strong statist view about individual rights (a position that seems politically at odds with the view that laws like Title VII are wholly constitutional).
So . . . should a hiring partner be free to make an employment decision based on an applicant’s ability to articulate his or her understanding of what the Federalist Society stands for and — more imporantly — why? The same about the ACLS or ACLU or National Wildlife Federation.
A hiring decision based on an applicant’s ability to reason through these principles seems to me to have nothing to do with politics.
It’s about hiring someone who can express themselves.
If a Supreme Court clerk walked into your office, would you not hire him because he’s a member of the Federalist Society? Or the ACLS?
Of course not. That would be ridiculous. These people are professionals — with remarkable skills to advocate for a firm’s client.
Anyone who thinks such a person — or any applicants who can express themselves in the manner required for lawyers — should be excluded because of their juridical philosophy is a complete ass.
And by “complete ass” I rely on the same sort of “objective person” test prescribed for 4th A cases by Leon and Herring.
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December 7, 2009, 7:11 pmDerrick says:
Unfortunately that wasn’t my experience. At Emory, the Federalists were some of the most close-minded people that I met. They weren’t about ideas as much as ideology.
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December 7, 2009, 7:15 pmNevadausa** says:
Oops:
The paragraph in my post that reads:
Should read:
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December 7, 2009, 7:15 pmMichelle Dulak Thomson says:
Anderson,
IIRC, Sowell has argued that private businesses should be free to racially discriminate vs. customers, on the theory that those who discriminate are hurting themselves financially. I don’t share his opinion, but I take Sowell to be someone likely to be considered a valid authority by those in the Fed Soc.
Long ago I read Sowell’s Preferential Policies, basically a global survey of racial preferences and resulting controversies. That book, as I recall it, didn’t state Sowell’s own policy preferences in so many words, but it made repeatedly clear that the reason policies of discrimination in favor of allegedly “superior” races generally had to be enforced by law is that — left to themselves — employers, shops, transit providers, &c. tended to evade them. The starting example was, IIRC, white South African mine operators under apartheid: you might think a white “baas” would prefer white workers, but, on the contrary, until teeth were put in the apartheid regulations, it was rather difficult for white men to find work. (And I think that held true even when wages were fixed by law, so it wasn’t just a question of black workers being cheap.)
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December 7, 2009, 7:18 pmArkady says:
Would that we all could attain the moral courage of Justice Marx, that would be Groucho, who, in dicta, stated he wouldn’t be a member of a law firm that would have him as a member. (I believe his politics were anarcho-anarchist.)
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December 7, 2009, 7:19 pmAnderson says:
Michelle, that might’ve been the book I read (my dad handed it over to me) — so if I’ve misstated Sowell’s position, my thanks for the correction.
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December 7, 2009, 7:21 pmSuperSkeptic says:
I recall having this debate (possibly even with you) a while back (and it harkens to the more recent debate at Reason magazine discussed here at VC, possibly in a Somin thread, — if you remember that as well — about social/non-legal forms of coercion and regarding the various libertarian positions). I believe I understand your position well. I self-describe as a libertarian for lack of a better linguistic descriptor, but I do not drink the kool-aid, so to speak (at least, not all of it :) ). That being said, I disagree when you assert that I/we lack a sense of history. On the contrary, I think it is precisely that sense of history that animates our position — a longer-term view. And I think we do, in fact, look at both sides of the equation. I think that where we differ is the conclusions we draw based on that history; we weigh the cost/benefit analysis differently. We, as an overgeneralization, are simply more willing to bear the short-term evils/costs of such discrimination for the long-term benefits of state abstention on the matters.* The detrimental social mores are transient, whereas the legal entrenchment or infringements remain longer after the ills to be attacked have abated. I suspect this is the key to our differences. Not a historical ignorance at all, but rather differing values or cost/benefit analyses. I am highly cognizant of history, indeed — the good, the bad, and the ugly. If that makes any sense...
Although, to be sure, there are inevitably the dogmatic to whom history is of no consequence. Perhaps you mean only to criticize these because you use the overgeneralized term “Libertarian,” but I simply wish to present you with a more nuanced position.
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December 7, 2009, 7:22 pmSuperSkeptic says:
And troll_dc2, there are many thoughtful classical liberals or libertarians who recognize that their principles are incapable of immediate implementation, but they still consider them right and just, e.g., Spencer or Nock.
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December 7, 2009, 7:26 pmSara says:
Perhaps I am jaded but is NAME WITHHELD, GREENWICH, CONN., a member of the FS?
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December 7, 2009, 7:35 pmMidlantan says:
I’m dumbfounded that some commenters (on VC!) seem to be suggesting that the anonymous letter-writer is acting unethically in considering an applicant’s membership in the FS in deciding whether to choose the applicant over another. Upon closer inspection, though, it doesn’t look like many are, other than perhaps Mr. L and Anderson, who seem to be arguing that Name Withheld is violating a fiduciary duty to the firm because, in considering FS membership, NW is not acting in the firm’s best (financial) interest, or applying criteria other than those the firm’s hiring process allows.
Even assuming that we can equate ethical and fiduciary duties (and I’m not sure we can), it’s hard to see how we can conclude NW is breaching a fiduciary duty to the firm by considering FS membership. Taking NW’s description of his task at face value, he is meant to assess the applicants’ “judgment and personality.” How is FS membership not relevant to such an assessment? Listing such membership on a resume would seem to be a pretty good signal of at least one solid chunk of the applicant’s worldview — how he or she views the role of the law, the judiciary, etc. Perhaps NW thinks that the notion that the “legal profession is currently strongly dominated by a form of orthodox liberal ideology which advocates a centralized and uniform society” is bunk, and concludes that those who espouse the view and advertise it on their resumes are displaying poor judgment?
Of course, NW does concede that the applicants’ politics would “not affect their professional function,” but it’s unclear whether NW means no conceivable effect whatsoever, or merely that FS membership isn’t some obviously crippling black mark for a lawyer in the firm (as it might be if, say, the applicant were being hired to lobby certain politicians or groups who really detest the FS). But in any case, why isn’t it ethical for a partner — contemplating bringing another lawyer into the partnership — to conclude that an applicant’s politics reflect poor judgment or a personality that the partner would rather not be associated with?
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December 7, 2009, 7:36 pmAnderson says:
But in any case, why isn’t it ethical for a partner — contemplating bringing another lawyer into the partnership — to conclude that an applicant’s politics reflect poor judgment or a personality that the partner would rather not be associated with?
One, because Fed Soc membership is a relatively poor marker for those qualities, esp. in a law graduate. Compare if N.W. voted against redheaded applicants.
Two, because it seems N.W. is acting on a secret prejudice, rather than being candid with his/her firm as to the criteria applied.
Three, because N.W. admits that some of his/her partners have conservative views similar to those of the Fed Soc, so if N.W. really thinks those views are so pernicious, then he/she has an issue w/ the firm, really.
... I’m not sure I’d go so far as “fiduciary duty” w/out some research, but I think one has an *ethical* duty to one’s firm, i.e., one’s law partners.
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December 7, 2009, 7:45 pmNickM says:
Not even on spring break?
Nick
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December 7, 2009, 7:49 pmCalderon says:
At the (hopefully still low risk) of outing myself, I am a member of the Federalist Society and previously worked / interned for the ACLU.
My own opinion, as a libertarian, is that a firm is free to discriminate against Federalist Society members if it so desires. That said, the individual attorney is supposed to follow whatever guidelines are laid down by the firm’s governing body or partnership. Being a member and working at the firm is an agreement by that attorney to follow those guidelines (unless they get an exception of some sort). If those exclude consideration of FS membership, or count it as a positive, then the individual attorney would be acting unethically in discriminating against an attorney based on FS membership.
If there are no guidelines about such membership, then the attorney is free to judge the criteria as s/he see fits. That said, I personally would think membership in the FS (or the progressive equivalent who name is escaping me, the Constitution Society or whatever) would be a positive since it indicates an interest in the law and someone who is less likely to decide after 2–3 years practicing at the firm that they want to do something else with their lives.
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December 7, 2009, 7:49 pmYankev says:
True. I stand corrected and can say only in my defense that those people are not true
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December 7, 2009, 7:57 pmbyomtov says:
Michelle Dulak Thomson (no “P”),
That book, .... made repeatedly clear that the reason policies of discrimination in favor of allegedly “superior” races generally had to be enforced by law is that — left to themselves — employers, shops, transit providers, &c. tended to evade them.
We’ve had this argument a hundred times here, but for the record, what the book makes “repeatedly clear” is not true. To take one direct example, southern segregation laws did little or nothing to mandate discrimination in employment, yet the practice was widespread.
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December 7, 2009, 8:05 pmtarheel says:
Seems generally like a terrible practice, but I can certainly imagine a circumstance or two where it is reasonable. If I am hiring partner at a plaintiff’s med-mal firm, it might make perfect sense not to hire someone who chose to join a group that actively supports tort reform (if the FS indeed does hold that position, which I don’t know). It’s lazy shorthand, but not totally unreasonable.
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December 7, 2009, 8:06 pmArthurKirkland says:
1) Favoritism is a two-way street that does not appear to respect party or ideological lines. I have mixed feeling about favoritism of the type associated with the Federalist Society, which appears to be, among other things, an employment network for conservatives. But (in general) unless one denounces employers who place a thumb on the scale for members of a group, he should not object when the thumb works against that group’s members.
2) The ‘duty owed to the employer’ issue generates some interesting questions. Are the federal judges who apply ideological filters to clerk candidates (and/or hire clerks of judges with similar political perspectives) cheating the government or the citizens who fund clerks’ salaries?
3) I attend Federalist Society events. Libertarians — the kind whose libertarianism extends beyond the overlap with conservative ideology — seem rare. Social conservatives — the opposite of libertarians, on issues ranging from drug warriors to discrimination against gays and government spying to government prudism — appear to dominate the discussions and the seats.
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December 7, 2009, 8:11 pmAnderson says:
Re: Tarheel’s comment, I am skeptical of “tort reform,” but cheerfully admit that it’s beneficial in many respects to my clients.
As a certain air elemental says, hey, I don’t make the crazy rules — I just twist them to my purpose.
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December 7, 2009, 8:12 pmMichelle Dulak Thomson says:
byomtov,
Thanks very much for the no-P!
We’ve had this argument a hundred times here, but for the record, what the book makes “repeatedly clear” is not true. To take one direct example, southern segregation laws did little or nothing to mandate discrimination in employment, yet the practice was widespread.
You know, I am not sure what Sowell claimed about employment discrimination under Jim Crow. The example I remember from the book regarding Jim Crow is that established bus companies weren’t eager to enforce segregation, fearing competition from rival companies who would cater to black riders. That would not be trivial in places where blacks made up a quarter or a third of the population, and possibly more of the likely riders.
And, yeah, I remember having this exact discussion several years ago here, so perhaps it’s time (one or two moves later!) for me to haul the book out of storage and settle the matter ;-)
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December 7, 2009, 8:35 pmShelbyC says:
Well, the article says it’s not OK to refuse to hire Federalist Society Members, but it’s OK to refuse medical treatment to lawyers. Sounds ’bout right.
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December 7, 2009, 8:35 pmShelbyC says:
Well, one might find that type of activity in general a plus. For example, membership in the FedSoc, the ACLU, or the Young Super Leftie Association might all be weighed as a plus over someone who had no such activity. But it would be hard to consider it a minus.
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December 7, 2009, 8:44 pmBT says:
Is NM doing anything differently than say a partner who graduated from Notre Dame, and all things being equal, would favor fellow ND grads over say Northwestern? Or maybe I should say Navy as ND can’t seem to beat them in football.
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December 7, 2009, 8:46 pmBT says:
Oops, I should have said NW in above post.
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December 7, 2009, 9:02 pmloki13 says:
1– I am amazed at all the references to the ACLU. The better counterpoint would be the ACS.
2– The two best groups on my campus in terms of sparking some intellectual (law-related) conversations, by far, were the FS and the ACS. No other group came close. Both groups had weekly debates and presenations, and attracted much better speakers than the school did. In fact, the faculty used to complain that the groups regularly got speakers that were much better than the faculty did (for their faculty enrichment series).
3– I think the letter writer was completely wrong; while I was in LS, two of my good friends were the heads of the FS and the Law School Republicans (I was the head of the ACS). Did we agree on much? No. But we enjoyed the coversations. And I’d hire both of them (as I know they would hire me). Being an advocate often means arguing for things you don’t personally believe in; I can’t imagine why “random self-important Greenwich attorney” hasn’t figured this out yet.
4– It’s too bad that the ACS gets confused with the American Cancer Society.
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December 7, 2009, 9:18 pmMidlantan says:
Regarding one: I disagree. Or rather, I’m not sure which qualities you mean “by those qualities,” but I certainly assert that FS membership is a good marker for some qualities, such as “I tend to agree with this organization’s positions.” If nothing else, putting FS membership on one’s resume is a good marker for “I think supporting this organization is a good one.” Whether those are good qualities or bad ones are a point of some debate among VC commenters.
Re two: it’s not at all clear NW is being secretive about his criterion. The firm gave the crunchy bleeding-heart the task of interviewing — why do we assume the others in the firm don’t think NW will use that criterion? Why do you think the (Anderson, you call it a “prejudice,” but there’s no indication NW is prejudging. Rather, he’s judging a person’s political viewpoint.)
Re three: Perhaps other partners in the firm are conservative. And perhaps NW doesn’t want to increase the number of conservative partners in the firm, either in absolute numbers or as compared to liberal partners. Why would that be unethical? Especially if one believes that one’s political views are tied to ethical decisionmaking? A partner does not owe a duty (fiduciary or ethical) to maintain the status quo when it comes to the political makeup of a law firm.
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December 7, 2009, 9:26 pmCarl The EconGuy says:
So, what would y’all advise a student in law school? Avoid FS? Become a member of both ACLU and FS?
Here’s the real question: why is law so politicized? Why did no one teach y’all to try to keep your filthy politics out of your legal reasoning? Has legal realism invaded the teaching of law to such a degree that no one believes in basic principles of law anymore?
Why is it that everyone here seems to condone a political stance in the teaching/arguing/interpretation of the law? Are y’all a group of serious professionals with a specialized knowledge of how to apply technical legal reasoning or are you a political debating society?
Don’t get me wrong, economists aren’t much better, so I’m not riding a high horse here. But we economists don’t nearly have the influence you lawyers do. I’m happy we don’t have a Supreme Council of economists with the powers justices do. We really don’t know much, sad to say, beyond that prices matter and that people respond to incentives.
But lawyers shape society in a way most other professions don’t. Why can’t you then realize your responsibility to contain excessive partisanship?
As a libertarian, I of course believe that the FS stands for positions that are much closer to Original Intent of the Founding Fathers than ACLU and the current liberal orthodoxy in law schools do. So, why should that be disqualifying for job applicants in any law firm?
Shame on y’all. Get it together.
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December 7, 2009, 9:30 pmJBM says:
I think the interviewer’s implicit “ethical” question was, “Am I correct in believing that it is acceptable to discriminate against conservatives but not liberals?”
The question answered was, “Is it acceptable for employers to discriminate on the basis of political affiliation?”
It’s the implicit question that makes the whole thing interesting, because it reveals a pretty accurate (I think) picture of the liberal mindset.
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December 7, 2009, 9:37 pmAlanDownunder says:
Doesn’t this clown realise that FSoc is a vehicle for professional advancement, not retardation? Even the dumbest airheads in the DoJ knew that.
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December 7, 2009, 9:40 pmHugh says:
“It was odious when membership in the Federalist Society was all but required for some jobs in the Justice Department; it is no more appealing to make that affiliation a bar to employment at your firm.”
Excuse me? I lived in DC during most of the first term of the Bush administration and I assure you that very few conservatives were hired for career appointee (non-political) positions in the Justice Department.
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December 7, 2009, 9:43 pmPatHMV says:
Anderson said: PatHMV, who I trust has not turned liberal all of a sudden
I appreciate your faith in me! ;-)
Glad to find an issue where (I think) we are largely in agreement.
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December 7, 2009, 9:50 pmStephen M (ethesis) says:
troll_dc2 — I’m LDS (Mormon) and I’m in Texas. In some parts of Texas preachers still lead yearly crusades against Mormons, or did. There were a couple in Wichita Falls in the year before we left town. I suspect there have been some since. The neighborhood watch on the block over got started in response to religiously motivated vandalism of an LDS widow’s house (her husband had died in the service — this was in the mid-1990s, so it was before Bush was elected and the wars).
My current job, it is a non-issue.
I’d rather be told the truth than be left not knowing, and I appreciated their concerns and issues. Given the way the timing worked out with the issues at http://adrr.com/living/ it was probably all for the best.
Anyway, hope that explains my thinking and why I understood their thinking. I would not do what they did myself, but I understood why they did what they did.
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December 7, 2009, 10:25 pmNonRejectedFSMember says:
I think the update has to be fabricated. If the hiring partner had actually rejected each member of the Federalist Society, then why are there so many of us who have not been rejected? Professor Kerr: have you received a rejection? This looks to me like mere political puffery.
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December 7, 2009, 10:27 pmStephen M (ethesis) says:
Oh, when I post during the day I post as Texas Lawyer in DFW, from this computer I post with my normal ID. Same e-mail, same blog, though my website (not my blog) is http://adrr.com/
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December 7, 2009, 10:30 pmMark Field says:
Eager? I don’t know how to measure “eager”, but they sure enforced it a lot. They not only lost lawsuits against it, there was the small incident of Rosa Parks.
I lost a job because I was “too liberal”. What, in your opinion, should I conclude about the “conservative mindset”?
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December 7, 2009, 10:38 pmHume says:
Mark N wrote “but people who self-identify as “anarchists” in particular, whether left-anarchists or anarcho-capitalists, tend to see it as more of an ethical philosophy, from which the politics simply emerges as one practical application. For left-anarchists there’s way too many examples to list (in fact practically all major works of left-anarchism are at least as much ethical ones as political ones), and on the right, folks like Murray Rothbard see it as largely an ethical system.”
I would have to disagree with this statement, at least as far as Rothbard is concerned (cant comment on the left anarchists because none listed). If I remember correctly, Rothbard stated more than once that his idea of libertarianism was a political theory, one that dealt with the relationship between individuals and government. It is true that moral philosophy provides the foundations of his libertarian theory, but it is not true that one could deduce any ethical evaluations from such theory (outside of a political context). For example, a libertarian would (most likely) assert that “it is wrong for the government to regulate caloric intake.” This is (usually) the logical outcome of libertarian axioms. But these axioms will never tell one whether it is right or wrong to eat 3,500 calories a day. Another example is the controversial topic of abortion. Rothbard defended abortion from state intervention. His arguments, however, shed no light on whether abortion is right or wrong. In summary, Rothbardian libertarianism (and I would argue all libertarian political theories) stands for the proposition that “you have a right to do wrong, provided you do not aggress against the rights of others.” This leaves unanswered whether your actions are morally wrong, whether you are leading the good life, the essence of an ethical theory.
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December 7, 2009, 10:45 pmDesiderius says:
Anderson,
“If libertarians, at the VC for instance, spent more time discussing Nozick & such instead of Ayn Rand, they might seem much more persuasive. Just sayin’.”
That would require understanding Nozick — something I suspect even Nozick himself fails to do at times. One of the reasons Rawls has kicked his ass eight ways to Sunday over the past couple generations. Perhaps the primary one, given the historical facts in the mean time that seem, to me at least, to lean Nozick’s way.
What are your views of the the plausibility of achieving (or at least pursuing) Rawlsian ends with Hayekian means?
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December 7, 2009, 10:46 pmRyan Waxx says:
As usual, we have a great many people of leftist persuasion insisting that there’s “good” discrimination and “bad” discrimination. The bad variety is the kind that’s against their pet political factions, and warrants nearly unlimited remedial powers from all levels of government. The good variety is against their political enemies, and is barely worthy of note, much less intervention.
Discrimination law is a political and social weapon. Nothing more, nothing less.
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December 7, 2009, 10:58 pmloki13 says:
Duh! Some might even call this discrimination vs. invidious discrimination. Put another way– I have a discriminating palate... is that a problem? If I pick discriminate against Taco Bell by eating at In n Out, should I be pilloried?
It’s not “people of the leftist persuasion” who believe there’s good and bad discrimination. It’s “people of the thinking persuasion.”
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December 7, 2009, 11:41 pmArthurKirkland says:
Many judges who regard the Federalist Society as a feeder system for clerks — and presumably see this as “good discrimination” — strike me as outside the “leftist persuasion.” Those judges tend to see affirmative action as “bad discrimination.”
Are those judges the people Ryan had in mind when decrying people who like discrimination that favors their pet political philosophies, yet decry discrimination that doesn’t?
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December 8, 2009, 1:02 amAlanDownunder says:
- Hugh, December 7, 2009, 9:43 pm
Likewise, Palin’s Alaskan abode made her an expert on Russia
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December 8, 2009, 1:32 amCan't find a good name says:
Carl The EconGuy: I would advise a law student who is interested in the Federalist Society to join the FS, but not to put that on their resume unless the resume was being sent to an employer for which the student believes that FS membership will be seen as favorable.
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December 8, 2009, 1:37 amtheobromophile says:
To answer the question posed by several commenters and asked in several different ways (i.e. why include the Fed Soc on one’s resume, isn’t it fair game, etc): my problem with that is that there are far, far too many ways to interpret both membership in the Society and why someone would include it on a resume. Someone may have joined it because it sponsored the best debates, then put it on his resume because several of the managing partners at the firm are Federalists. Someone else may have joined (and put it on a resume) to signal a genuine passion for the law — a passion that many students, even in law school, let alone in practise, lack. Perhaps the practise area that the person wants to go into is associated, however tenuously, with conservative/libertarian ideology (e.g. insurance defence).
Given that, it seems rather difficult to determine whether or not Fed Soc membership is a good thing or a bad thing. Thus, it seems nonsensical to discriminate based on it.
As a matter of common sense (and perhaps ethics/fiduciary duties to one’s law firm), if an employer is going to base an employment decision on one line in a resume which can be interpreted in a multitude of ways, he should ask the candidate about it. A simple, “So, what do you like about the Federalist Society?” would suffice.
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December 8, 2009, 1:59 amtheobromophile says:
By the way, Dilan, I’m thrilled that you’ve given up on trying to make an actual argument and have instead elected to be the internet version of the drive-by scream.
Incidentally, I made that comment not because of some warped ideology (I leave that to you), but because of comments I’ve had with business people and engineers who work with lawyers on a regular basis.
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December 8, 2009, 2:06 amRich Rostrom says:
“May I recommend not hiring someone solely because of his or her politics?”
My answer would be if (and only if) the person’s political stance was genuinely obnoxious. Refusing to hire a Democrat, a Republican, a Federalist, or an ACLUer would be improper, IMHO.
But rejecting a follower of David Duke, or a LaRouchite, or a Communist, or an advocate of sharia would not be.
Likewise, rejecting Jews, or Catholics, or Mormons would be improper — but I would not hire a Scientologist.
The tolerance a free civil society grants to ordinary differences should not be extended into a license for destructive extremism.
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December 8, 2009, 4:14 amDavid Nieporent says:
Four — and perhaps this is just a synthesis of One and Two — anybody who is so closed-minded that he believes that mere membership in the Federalist Society (as a law student, mind you) is a disqualifying characteristic has such poor judgment himself that he probably has an ethical duty to disclose to the firm that he himself is not competent to make such decisions.
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December 8, 2009, 6:32 amDavid Nieporent says:
And, of course, the boycott that Parks’ arrest sparked was so damaging to the business that all sorts of governmental pressure was put on the boycotters.
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December 8, 2009, 6:42 amTamerlane says:
If the partners had acted as Mr. Name Withheld did, he’d never have been allowed into the firm in the first place and this instance of a liberal suffering phony angst about his unethical and invidious discrimination would never have occurred.
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December 8, 2009, 8:43 amDavid says:
This seems like a key point. Does anybody believe that when NAME WITHHELD wrote his interview report, he wrote, “I’m recommending against this guy because he’s a Federalist Society member”? Presumably not, i.e., he was lying to his firm.
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December 8, 2009, 9:28 amAnderson says:
If the partners had acted as Mr. Name Withheld did, he’d never have been allowed into the firm in the first place
Oooh! Categorical Imperative FAIL! Good catch!
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December 8, 2009, 9:34 amUri says:
name withheld sounds like a troll to me.
by which i don’t mean that i think his acts are bestial. i mean that i think they are probably fabricated.
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December 8, 2009, 9:46 amegd says:
I’m of the opinion that FS and ACS shouldn’t be put on a resume, it’s too easy to be “screened out” by an individual looking at your resume. Most law firms get enough resumes that it’s easy to discriminate without the appearance of bias.
Once you have your foot in the door and you get to show off the intellectual credentials, then you might let it slip (to a sympathetic interviewer) that you’re a FS or ACS member.
Is it unethical to leave it off the resume? I don’t think so. FS or ACS membership usually have little bearing on whether an individual is qualified or not.
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December 8, 2009, 9:54 amHume says:
Do you all think the same is true about applying to a Masters/Doctoral program? For example, if I was applying for a masters/doctorate in philosophy at NYU, would it be a bad idea to put in my cover letter that I plan on exploring libertarian political philosophy?
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December 8, 2009, 10:50 amMark Field says:
True enough, but it was the private violence which was the greater threat.
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December 8, 2009, 10:52 amAnderson says:
For example, if I was applying for a masters/doctorate in philosophy at NYU, would it be a bad idea to put in my cover letter that I plan on exploring libertarian political philosophy?
My own thought has been that, if it’s the kind of place where they might not admit you if they knew you, then it’s not the kind of place where you really want to get your degree.
So be candid in applying, and whoever rejects you for who you are, so much the better for you.
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December 8, 2009, 11:10 amHume says:
Anderson: I understand what you are saying. I think this question is much more intriguing: is it ethical for an academic reviewing an application to discriminate based on political viewpoints/research agendas?
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December 8, 2009, 11:31 amDilan Esper says:
Incidentally, I made that comment not because of some warped ideology (I leave that to you), but because of comments I’ve had with business people and engineers who work with lawyers on a regular basis.
Theo, I made my comment because you are talking out of your ass. In every major city, there are large law firms who attract many liberals as associates and partners and are nonetheless hired by powerful, conservative businesspeople to represent their interests in transactions and court. It may be that there are particular clients who might seek out a “conservative” law firm, but even if that is so, I know the business end of law practice fairly well and I can tell you that the “liberal” firms haven’t been hurt by their involvement in left-wing causes.
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December 8, 2009, 1:26 pmJasonB says:
I’d like to believe that is true. While I’m sure that this does happen in all kinds of contexts, I would like to think that most people would be ashamed enough to keep it private and not advertise their pettiness in the New York Times.
That said, what kind of discretion is left to the hiring partner? If he is given a blank check to choose, I don’t see how it is unethical. Foolish and small minded, but not unethical because you were given a blank check. Obviously, it is unethical, even if you have a blank check, if you are asked by the other partners about your hiring criteria because there is a responsibility to the other partners. But if the partners don’t care about how you choose, they deserve your choices, for better or worse.
That said, I think intellectual diversity at a law firm is a good thing. It helps to have different kinds of minds looking at a problem and to avoid groupthink. I find it tremendously helpful working at a firm where people’s approaches vary from sticklers to ‘outside-the-box’ types.
As to politics and judgment, yes, politics says something about your judgment, but with few exceptions, you don’t know that unless you ask a candidate about his politics. But it seems to me that most of good reasons to exclude someone of the basis of politics fall into the “doesn’t-play-well-with-others” category. Hating white people/black people/Jews, etc. But these are specific beliefs and mere membership in the Federalist Society doesn’t really fall under that umbrella.
Lastly, there may be sometimes when an applicant’s politics might make them an awkward fit in the firm. A Marxist applying for a job at a creditor’s rights firm. A committed pro-lifer applying for work at a firm who has an abortion clinic as a prominent client. I think in those situations, those types of candidates (however unlikely they might be) would probably not be happy doing the work required of them and might not be a good fit for their jobs. Not everyone is suited for every job they are capable of and it may well be in the interest of the applicant to be turned down for a job that would make him miserable anyway. But this seems like it would be a pretty narrow category.
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loki13 says:
I had this issue a while back. I had serious doubts about whether I should put various things involving the ACS on my resume considering that I would be working in a distinctly non-liberal field. My wife gave me the best advice, and advice I’m glad I followed–
Put it on your resume. If a firm doesn’t hire you because of that, you wouldn’t want to work there anyway.
I think that holds true for ACS and FS members.
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December 8, 2009, 1:49 pmricky says:
“The tolerance a free civil society grants to ordinary differences should not be extended into a license for destructive extremism.”
And thank goodness we have such wise, fair-minded philosopher-kings to draw the line between “ordinary differences” and “destructive extremism”!
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December 8, 2009, 3:12 pmAnderson says:
I think this question is much more intriguing: is it ethical for an academic reviewing an application to discriminate based on political viewpoints/research agendas?
Ah. I don’t think so re: politics, tho “research agendas” is broad enough that it could be a substantive basis for rejection.
I’m trying to think of a counter re: politics, but even if an applicant is highly ideological, there’s a presumption he can put that aside for teaching purposes.
What about a heavily liberal poli sci dep’t whose chair thinks “we need a conservative around here” (hey, it’s a hypo) and discriminates in favor of conservative applicants? Does the answer change if it’s the English dep’t?
I think in the former case, one’s own ideology is likely to reflect/affect one’s studies, mentoring, etc., so that it seems a more acceptable case. Not sure I buy it re: English.
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December 8, 2009, 4:52 pmleo marvin says:
For the first time ever, I agree with Danger Mouse. Sort of. It’s foolish to assume your bosses are as enlightened as you want them to be. Burdening them with personal details they think might be detrimental to your job performance or even just their mood puts them in an uncomfortable position. Why risk it? Of course this isn’t a liberal problem or a conservative problem. It’s just recognizing the prudent workplace boundaries mandated by human nature.
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December 8, 2009, 6:57 pmbob Policy says:
Would it be unethical to omit mention of one’s membership in the Federal Society from a resume?
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December 8, 2009, 7:57 pmtheobromophile says:
Dilan: good thing I didn’t say that law firms were hurting financially for hiring liberals.
I shouldn’t be surprised that you just made something up, taking the most far-fetched and ridiculous interpretation of what I wrote, then distorting that a bit for good measure. After all, it’s Dilan Esper Standard Operating Procedure: if you can’t win on the merits, lie your brains out.
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December 9, 2009, 2:16 amDilan Esper says:
Theo:
You said, or implied, that well-heeled clients are out there refusing to hire firms generally associated with the left. And unfortunately you said that knowing nothing at all about the legal field or how clients tend to come to hire large law firms.
I do know quite a bit about this, and you were talking out of your ass.
At this point, you are simply going to call me a jerk whenever I call you on any of the many ignorant things you say. Which is fine.
But the reality is you like to think of yourself as this brilliant woman who impresses everyone you know, the pro-lifer who strikes fear in the heart of pro-choicer, the woman with the engineering degree whose brilliance cannot be overstated.
Truly, you really need to learn something about humility and what you DON’T know. It is a lot. You are not that smart and you are certainly not special. You are just an internet commentator talking out of her ass, just like all of us.
And of course, it’s unsurprising that you would like Sarah Palin, because she’s got the same problem you do writ large on a much bigger stage.
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December 9, 2009, 3:27 ammichael says:
Interesting. If I saw federalist Society on a resume
it would give the applicant a leg up.
I would consider it sign of superior intellect and judgment
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December 9, 2009, 6:04 pmtheobromophile says:
First, Dilan, that “implication” was all yours.
Although you constantly feel the need to belittle me, I am still an intelligent woman. That hardly means that my brilliance cannot be overstated, but I’m not the anti-science, theologically-driven idiot that you make me out to be.
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December 12, 2009, 3:40 pm