The Volokh Conspiracy

"Ex-Honors Program Applicant Sues DOJ Over Politicized Hiring":
The Legal Times has the story of a rejected DOJ Honors program applicant who apparently believes that he would have received an offer from the DOJ Honors program if not for the politicalization of the hiring process. I don't know much about employment law -- nor about whether several claims in the complaint actually provide for private rights of action -- but I thought the last paragraph of the story was pretty funny.
Dave N (mail):
I know nothing of the merits but I find it odd that on the one hand the applicant claims he would have been selected for the Honors Program except for his political affiliation but, on the other hand, he left law school without a job.

Now don't get me wrong. I graduated in the top 15-20% of my law school class and didn't have a job upon graduation, either. But it still seems strange.
7.2.2008 1:10pm
DCTenor1:
The DOJ Honors Program is incredibly competitive, regardless of the alleged politicization of the hiring process.
7.2.2008 1:20pm
Tip Of The Iceberg:
And the Floodgates have opened ...
7.2.2008 1:49pm
Barbara Skolaut (mail):
And he think's he should be guaranteed a job sucking at the public teat because....? Where's his written contract?

I'm sure he'll be able to recover from his shock and dismay for the right amount of money - from the public teat, of course.

Or he could continue to, you know, actually produce in the private sector like the rest of us have to.

What a whiney-assed self-entitled little loser. Belgium, huh? That fits.
7.2.2008 1:55pm
Ex-Fed (mail) (www):
We can only hope that his suit will also break wide open the age-old shame that is DoJ's bitter prejudice against Belgians.
7.2.2008 1:56pm
krs:
Hm... the facts in that last paragraph will probably figure strongly in the DOJ's "we wouldn't have hired him anyway" defense.

When I saw the post title, I was afraid it was UNICEF-guy.
7.2.2008 2:21pm
GV:
This reminds me of the second part of the Hopwood case (the 5th circuit case that struck down the University of Texas's affirmative action program). The plaintiff attempted to show she would have been admitted but for AA. She lost -- badly. She wasn't qualified to go to the school in the first place.
7.2.2008 2:32pm
zooba:
Anyone who raises 14th amendment claims in a lawsuit solely against the federal government and its employees doesn't deserve to have a legal job.
7.2.2008 2:41pm
Terrivus:
I just read the complaint (available via Above the Law). Maybe I'm missing something, but the guy doesn't allege critical facts -- like what, exactly, were the "liberal" credentials that allegedly got him bounced from consideration. Most of the complaint is directed toward the DOJ screeners' use of the internet to weed out applicants. And even there, the complaint doesn't cite any specific facts that they found out about him; it just alleges general "violation of privacy" claims, which would apply to every employer who looks up someone on the web (or Facebook, MySpace, etc.) before hiring them -- which happens all the time.
7.2.2008 2:45pm
Wannabe Esquire:
Two questions:

(1) Doesn't the 14th Amendment only apply to action by the states?

(2) What would be the burden here? Is it merely showing by a preponderance of the evidence that he would have gotten the job? We all know there are some people for whom it's a given they will get a certain job--not because of connections, but because they have exactly what the employer wants.
7.2.2008 2:48pm
PaulG (mail):
Has the federal government waived sovereign immunity for suits like this?
7.2.2008 2:58pm
Cato:
I'm just curious as to why people (namely, Anderson) are the impression that "Vanderbilt" is a "top" school. Far from it.

It's generally a mistake to associate Vanderbilt Law with the university's more widely-renowned name. The GPAs of its incoming students are necessarily inflated because it mostly attracts kids from the SEC schools, the academic quality of which is inherently suspect. Ole Miss, for example, is anything but an intellectual powerhouse.

The real point of this thread, however, is that kids at Harvard are becoming increasingly devoid of mental substance -- despite the fact that they attend a school that is popularly mythologized as the ideal in American education. Set foot on their campus, and you will be able to see how mediocre many of the students truly are.
7.2.2008 3:10pm
Cato:
*are under the impression...
7.2.2008 3:11pm
LHD:
Yes, that last paragraph was hilarious, Prof. Kerr.

I'm sure you have never had any students in your classes who paid out their... nose, whom you dutifully passed on through the system like a good law professor must (no failing! curve those grades!), who subsequently was unable to find employment.

No, surely not from him who feeds Scalia clerk-puppets.

So yes, let's all laugh at the misfortune of others. Oh, it is so joyful, isn't it? Those silly state-school peons. Serves them right.
7.2.2008 3:13pm
RBW:
Wow LHD, sounds like someone got a B- in Kerr's class at GW...
7.2.2008 3:23pm
krs:
Cato, I suppose it depends on where you draw the line at "top." Vanderbilt Law is probably top 20. It's not Yale, but its graduates tend to do pretty well. Leiter's rankings for student quality (numbers), placement in law teaching, faculty quality ("scholarly impact") have it in the top 20... and every so often they place a clerk on the Supreme Court.

Also, I don't see the "Anderson" comment to which you seem to refer.
7.2.2008 3:41pm
alexanorak (mail):
LHD is right. While Kerr is on the right side of the issues, viewing a person's inability to find a job "pretty funny" is an infuriating example of the smugness that made "yuppie" a dirty word. I saw Kerr on C-span last night and can say two things about him. First, he wouldn't last 5 seconds in any street confrontation, and second, it's a good thing he's a law professor because he'd never be able to present a story to a jury.
7.2.2008 3:41pm
krs:
who feeds Scalia clerk-puppets

One time I made a puppet of a Scalia clerk out of a sock. Then I tried to feed it some legislative history, but the Scalia clerk-puppet crumpled it into a ball and spit it out.
7.2.2008 3:42pm
A Law Dawg:

Finding no job upon graduation from the University of Georgia law school, Gerlich moved to Belgium last year. He now works as an associate for a law firm in Brussels.


Dammit. My graduating class, too.
7.2.2008 3:43pm
Bob from Ohio (mail):
LHD, I think Kerr meant the irony that someone who so badly wanted to serve his county ending up overseas.

By the way, how does Scalia cook clerks?
7.2.2008 3:46pm
Kenvee:
LHD &alexanorak

I think the amusement value comes not from a law school graduate not having a job (a position I was in myself upon graduation), but from this particular person thinking so highly of his qualifications to the point he literally makes a federal case of it, alleging he absolutely would've gotten this DOJ job but for the anti-liberal bias . . . and he can't land any other jobs? I think that contradicts his claim outright, and is a little funny in light of the arrogance of his claim.
7.2.2008 3:54pm
Mhoram:
I find it hard to believe that there are any unemployed lawyers out there - if they actually want to work.

I strongly suspect that the final paragraph should have read thusly: "Finding no elite clerkship or associate position with a large law firm paying exorbitant salaries to first year associates ..."

If you want to work, you will work. At the very least he can start doing real-estate closings and taking appointed work from juvenile courts. It may not be the glamorous high profile job he feels like he is entitled to, but it pays the bills and feeds the kids.
7.2.2008 4:05pm
DJR:

it's a good thing he's a law professor because he'd never be able to present a story to a jury.


Orin Kerr was a trial attorney at DOJ and an AUSA in the E.D. Va. I think he can present a story to a jury.
7.2.2008 4:08pm
Cato:
krs, my mistake. I accidentally posted to this link rather than the Harvard Law Review note one. I hit backspace one too many times ... guess that serves me right for picking on the intellectual caliber of the students at Vandy.
7.2.2008 4:10pm
OrinKerr:
Bob From Ohio,

Yes, that was the funny part, I thought:
Metcalfe says Gerlich was "disgracefully deprived of the opportunity to do what he had planned to do, [which was] to return to the Justice Department as an attorney and serve his country."

Finding no job upon graduation from the University of Georgia law school, Gerlich moved to Belgium last year.
I apologize if I insulted any Belgians out there. (If it makes you feel better, I love your beer.)
7.2.2008 4:10pm
Terrivus:
viewing a person's inability to find a job "pretty funny" is an infuriating example of the smugness that made "yuppie" a dirty word.

What decade are you living in, my friend? The die-yuppie-scum trope went out around 1992. Do you think all investment bankers were suspenders, too?

I saw Kerr on C-span last night and can say two things about him. First, he wouldn't last 5 seconds in any street confrontation

Relevant.

, and second, it's a good thing he's a law professor because he'd never be able to present a story to a jury.

Did I miss the part where the members of the panel was informed they would have to persuade a decisionmaker, an entirely different skill than analyzing appellate opinions? "It's a good thing Lebron James is a basketball player, because he'd never be able to perform surgery."
7.2.2008 4:19pm
U.Va. 3L:
Monty Python on the Belgians.

Quite NSFW (the skit is called "Prejudice," after all) but hilarious nonetheless.
7.2.2008 4:24pm
Joe Bingham (mail):
It's funny for the reason OK thinks, AND because the guy assumed he'd be hired but couldn't find a job anywhere else in the USA. Heh.
7.2.2008 4:40pm
OrinKerr:
alexanorak,

I did not find it funny that the guy couldn't get a job. It is not funny at all. It is sad and distressing. But I think it *is* funny that his lawyer said he just wanted to serve his country, and then he moved to Belgium.

Oh, and on the street fight/jury question: First, true on the street fight question. I'm a lawyer, not a fighter. But on the jury question, I not only could, but have.
7.2.2008 4:42pm
Smokey:
OrinKerr:
I did not find it funny that the guy couldn't get a job. It is not funny at all. It is sad and distressing.
Funny is in the eye of the beholder. I think it's funny in this context, but that's me.

However, it is not sad and distressing. Why not? Because you're leaving the folks out of the equation who pay all the bills: we taxpayers -- who would be ill served by this self-important, entitlement-minded clown. Better he stays with his Euroweenie pals. They can complain about George Bush in harmony.
7.2.2008 4:56pm
krs:

However, it is not sad and distressing. Why not? Because you're leaving the folks out of the equation who pay all the bills: we taxpayers -- who would be ill served by this self-important, entitlement-minded clown. Better he stays with his Euroweenie pals. They can complain about George Bush in harmony.

Smokey, I think Prof. Kerr said that it was "sad and distressing" that the plaintiff wasn't able to find any job at all in the US, not that DOJ didn't pick him up.
7.2.2008 5:05pm
Brian G (mail) (www):

I strongly suspect that the final paragraph should have read thusly: "Finding no elite clerkship or associate position with a large law firm paying exorbitant salaries to first year associates ..."


Brilliant, my friend. Brilliant.

I wish I were defending that lawsuit. i would have a field day in depositions.
7.2.2008 5:23pm
Per Son:
Best post ever goes to KRS:

who feeds Scalia clerk-puppets

One time I made a puppet of a Scalia clerk out of a sock. Then I tried to feed it some legislative history, but the Scalia clerk-puppet crumpled it into a ball and spit it out.
7.2.2008 5:35pm
John Moniker (mail):
I really don't think there is anything to get irate about. Top US law firms hire on very fixed schedules and if you find yourself out of schedule -- for whatever reason, even because you were competing for a more prestigious offer -- it can be very hard to get back into the race. This guy probably spent his 2L summer at DOJ and so didn't have a summer offer from a firm. He probably had fab grades to get him into the DOJ summer internship, but coming from U Georgia that may not have been enough to get a good firm to break schedule and hire him without any summer experience. His Burssels office was the best he had -- there is fantastic legal practice there with EU competition law and other areas. We are faulting him, or doubting that he genuinely wanted to serve his country, because he took that offer? It somehow disqualifies him morally from representing a class attacking the hiring practices that (if established) we all would despise? Come on now people.
7.2.2008 5:36pm
Curious Passerby (mail):
hiring practices that (if established) we all would despise? Come on now people.

With the state department and CIA full of democrats trying to subvert the will of the president I don't despise that his administration would like to hire as few leftists as possible.
7.2.2008 5:50pm
OrinKerr:
John,

We don't know the details, but your narrative has a significant problem, I think: The chances of getting an Honors Program position after interning at DOJ are probably on the order of about 5%. Unlike working for a law firm, there is no path from being an intern to being an Honors Program hire, and the latter is much more competitive than the former. Given that, it would be surprising if this candidate relied heavily on the expectation that he would get a job in the Honors program.
7.2.2008 5:51pm
Psalm91 (mail):
I am impressed by the strong consensus for merit based hiring decisions found in almost all of the comments, as well as the respect shown for the "private sector production" of Messrs. Yoo, Addington, et al.
7.2.2008 5:51pm
tarheel:

Given that, it would be surprising if this candidate relied heavily on the expectation that he would get a job in the Honors program.

I hold no brief for this guy and his weak suit, but I don't think this fully addresses John's point. This guy may not have been able to get a firm job that he wanted because he summered at the DOJ not with a firm. Unless you intern with a firm, it is significantly harder to get a job (especially from a UGA). It may not have been a reliance issue as much as simply not being in the firm hiring cycle (which I acknowledge is solely and completely his own fault).
7.2.2008 6:00pm
OrinKerr:
Thanks for the clarification, Tarheel.
7.2.2008 6:59pm
Smokey:
krs:
Smokey, I think Prof. Kerr said that it was "sad and distressing" that the plaintiff wasn't able to find any job at all in the US, not that DOJ didn't pick him up.
No one here has said that this jamoke 'couldn't get any job at all' in the U.S.

He could be a welder, or a truck driver, like lots of us hoi polloi. Or a special ed teacher. Or [if he was being honest about wanting to 'serve his country'], he could enlist in the Army as a legal officer. Or he could run a 7-11, or be a manager at K-Mart. Or, as was suggested above, he could specialize in real estate closings. He could do wills and estates.

But some of us non-lawyer jamokes see his situation as risible because of his glaring sense of entitlement. He was entitled to that job, see? And presumably there has to be something drastically wrong with the system, because he didn't get what, in his own mind, he was clearly entitled to.

heh.

Welcome to the real world.
7.2.2008 7:07pm
PLR:
I found it amusing that one of the vetters is now an associate at Seyfarth-Shaw. How glamorous.
7.2.2008 7:49pm
Ozzielaw:

This guy may not have been able to get a firm job that he wanted because he summered at the DOJ not with a firm. Unless you intern with a firm, it is significantly harder to get a job (especially from a UGA).


Actually, if he had good grades from UGA, he would have been right in the mix for an associate job in Atlanta. The Atlanta law firms rarely fill their allotment from their summer clerkship class, and there always are openings for people who interned elsewhere, or just didn't like the firm where they clerked. He might have trouble getting into a northeastern firm from UGA, but no firm in the Southeast would turn its nose up at a UGA grad with decent grades.

I'm speaking, by the way, as a UGA grad with career ADD who has worked in several large Atlanta firms and served on hiring committees when I couldn't get out of it.
7.2.2008 9:00pm
zippypinhead:
Once upon a decade, DOJ's Honors Program hiring timeframe was, indeed, out of synch with the private sector. But by and large that's not been the case for several years. Why? Because prudent 3Ls aren't going to wait so long to hear whether they have a DOJ offer that their private-sector offers expire. And given the vast pay disparity between top-tier private firms and DOJ, the Department simply can't afford to leave the best candidates hanging -- they'd lose them. As it is, DOJ pays only about 1/3 - 1/4 the big-firm going rate for GS-11 entry level lawyers. And government also can't compete with pre-Bar summer stipends and the other bennies that one can get from taking an offer from a decent private firm.

The Honors Program is VERY selective. Frankly, I've never heard of a credible Honors Program candidate who wasn't also HIGHLY sought after by private firms. Which leads me to suspect this guy either (a) had no prayer of getting hired by DOJ in the first place, regardless of political views, or (b) was so overconfident about his chances at DOJ that he simply didn't bother to cover his bets by interviewing with firms in the fall of his third year. Which was really dumb, because it is very much harder to get hired into the Honors Program, even after a summer internship, than it is to get hired by a firm after being a summer associate. Or even not being a summer associate and interviewing with firms during third year hiring season -- it's not uncommon for 3Ls who spend their second summer of law school in the public sector or doing pro bono work to show up the next fall in private firm interviews, and it's usually not viewed as a black mark by firms.

So methinks we're perhaps just looking at an attempt by a somewhat delusional and/or greedy plaintiff to get some settlement money by piggybacking on the (deservedly) bad publicity the Honors Program has taken for political meddling in what used to be a pretty strict merit-based hiring process. The plaintiff is going to be disappointed -- my prediction is this one won't last past the summary judgment motion stage, if that long. DOJ's Civil Division isn't going to settle this one early, just on principle.
7.3.2008 12:13am
Grover Gardner (mail):

Belgium, huh? That fits.


Yeah, the poor schmuck! Living in the capital of the EU with wonderful food, cool cars, fantastic pastry and coffee, beautiful parks and only a few hours from Paris and Amsterdam. Office on the Avenue Louise, probably lives in a cute little cottage in Rhode St. Genese. Eats mussels and drinks beer in the Grand' Place during his two-hour lunch and takes a month-long summer holiday What a loser!
7.3.2008 7:51am
David M. Nieporent (www):
Yeah, the poor schmuck! Living in the capital of the EU with
...Belgians. And no baseball.
7.3.2008 10:18am
Eric Rasmusen (mail) (www):
These comments make me rethink as to whether the DOJ political screening was harmful after all. The 2002 situation (I forget about whether 2006 was the same) was that budget cuts meant 1/3 of the picks of the civil servant screeners had to be dropped. The political screeners didn't introduce any names of their own-- they just deleted names. If all the civil servant screeners are wonderful, maybe it doesn't matter much if some got dropped for political reasons. (Except-- and a big except-- that dropping them was against the rules.)
7.3.2008 10:04pm