See, the "RTAs," or right-thinking Americans were needed because Clinton totally hired people who didn't think right. You just didn't hear about it cause the press didn't cover it. And it isn't true.

The important thing is that it's us versus them:

"Just between you and me, we hired another member of 'the team' yesterday. And still another ideological comrade will be starting in one month. So we are making progress."

Sarcastro,

I think your shtick works best when you poke fun at views that are clearly wrong, rather than when you critique an improper reaction to a problem; I believe it is widely recognized that career hiring in the Clinton Civil Rights Division very heavily factored in ideological views.

"Former Criminal Section Chief Moskowitz also said the candidates for career positions chosen by Schlozman had conservative political or ideological affiliations and rarely had any civil rights background, rarely expressed any interest in civil rights enforcement, and had very little or no federal criminal experience."

This, to me, is the most disturbing part. I'm a liberal, growing moreso by the day, but I'm less concerned about the percentage of conservatives/Federalist Society members/whatever Schlozman hired (as long as no specifically partisan (Democratic/Republican) factors were involved in the decision), as I am about the fact that being conservative was considered a sufficient quality to be hired or suggested for hiring, with little or no concern given to experience.

[OrinKerr Under Clinton, I'm sure conservativism was a minus, but from what I've read (some of it quoting this Orin Kerr character), it was not the outright ban the Gonzales DOJ seems to have instituted.]

Orin, are there any structural or statutory changes that you believe could prevent/mitigate this sort of undesirable outcome while still preserving executive control over the DOJ?

Sarcastro,

It's kind of hard to generalize these things, but my sense is that being a conservative was pretty much a nonstarter for Civil Rights hiring in the Clinton DOJ, although it wasn't in other Divisions. I think that explains in part why hiring at DOJ Civil RIghts under Bush was quite different from the rest. Also, I don't think there was a ban on liberals in DOJ CIvil RIghts under Bush: My sense was that most of the candidates hired were still left of center, but that there were few people who were very liberal (in contrast to previous years) and a number who were hard core conservatives. That's my sense, at least -- I would be happy to defer to others who know the numbers better than I do.

Matthew K,

They correlate, yes, but that does not imply that ideology is a proxy for party affiliation. Here, the apparent goal was to change the ideological make-up of DOJ Civil Rights: The way to do that was to introduce people with conservative ideologies. Party status was relevant to the extent it was a good proxy for ideology, not the other way around.

Will the new Obama political appointees in the Civil Rights Division "plan to gerrymander all of those crazy cons" left over from the Bush years? Stay tuned.

Depends.

If I happened to be an outspoken Federalist Society member would I reasonably think that would help me get a job in the Obama DOJ?

Probably not, and at least somewhere within the bounds of discretion.


On the other hand to take two of the anecdotes from the report that most shocked me, If I happened to be a federalist society member and I wasn't hired because a paralegal with a very suspiciously falsified resume, or someone who'd been fired from their job had been given clear preference because they happened to be an ACLU or ACS member?

I certainly hope that an Obama DOJ wouldn't fall that far, and I'm at least somewhat confident they wont.

Even pressing it, sure, actively working at the ACLU or in some public interest firm might well indicate a liberal political view, but it is at least somewhat relevant to a job in Civil Rights.

If I had none of that, but was conservative and happened to have credentials that fit another division better (say, law enforcement), I'd think my chances would be better there.

Why highly implausible? Party affiliation and ideology are strongly related.

True, but ideology exists on a continuum and is not easily classified for legal purposes, while party affiliations are bright lines.

True, but ideology exists on a continuum and is not easily classified for legal purposes, while party affiliations are bright lines.

I don't think "Federalist Society" and "ACS" are really such difficult signals.

EArlier I wrote:

Also, I don't think there was a ban on liberals in DOJ CIvil RIghts under Bush: My sense was that most of the candidates hired were still left of center, but that there were few people who were very liberal (in contrast to previous years) and a number who were hard core conservatives. That's my sense, at least -- I would be happy to defer to others who know the numbers better than I do.

I was wrong, as I learend by reading more of the report. See Table 2 of the report, which I have emphasized in an update to the original post.

Orin,

Do you think a headcounting of Republicans hired to civil service jobs at the Civil Rights division (in particular) is a fair way to judge the Obama administration on this issue?

This is particularly true given that the very limited nature of the Civil Rights Division's mandate, as to be defined by the Obama administration, will both likely a) limit the # of Republicans who apply for the position, and b)affect those applicant's answers to noncontroversial questions regarding the applicant's commitment to the Civil Rights Division's cause.

The Civil Rights Division is not like the USAO's office. A career servant in the CRD cannot simply avoid bringing cases under the Civil Rights Acts the way an AUSA can be staffed off of drug or death penalty cases.

Also, do you think, if the period of politicized hiring in the USAO and the CRD may (or may not, of course) have created an unbalanced workforce, that some sort of affirmative action balancing program will be warranted? (This is a seperate question to the general audience, one to which I myself probably am inclined to say no).

Orin, the politicized hiring is one thing; making intentionally false statements about it to Congress, as the IG report says Schlozman did in person and in writing, seems to be something else entirely. As a former federal prosecutor, do you find Schlozman's allegedly false statements troubling? Do you think the US Attorney's Office in DC was right to decline prosecution, based on what you know from the report?

I don't think "Federalist Society" and "ACS" are really such difficult signals.

How about "ABA" or "NACL"?

"Special Litigation Section Chief Cutlar told us that Schlozman also talked to her about Attorney A’s transfer. According to Cutlar, Schlozman said that Attorney A was “a Democrat in hiding and is not going to hide in my Appellate Section.” Cutlar also told us that Schlozman said that Attorney A “wrote in Ebonics,” “was an idiot,” and “was an affirmative action thing.” (p. 37)

If Cutlar's allegations are true, this is breathtaking. Perhaps not illegal, but breathtaking.

What astounds me is the sheer stupidity of using the DOJ email server to send this stuff. If you're going to engage in such naked political douchebaggery (and who doesn't really?), at least be a little bit more discrete. Make the offical emails look nice and unthreatening, and send a parallel email via hotmail saying how you really feel. You'd think people would learn by now. Sheesh.

The report was dated 7/02/08, but just released. Any ideas on why that is?

Not to be rude, but for the people speculating back and forth as to what the law permits or prohibits in terms of political hiring, take a look at the discussion starting at page 4 of the report linked in Prof. Kerr's post.

Wow, that's incredible. In the Clinton years, typical DOJ Civil Rights hiring would have been almost exactly the other way around.

Is this just your sense or is there something in particular that you're aware of and can point us to suggesting that Clinton hired liberals almost exclusively or generally excluded conservatives? I'm really not familiar with the hiring practices of the Clinton administration in the CRD and don't recall ever hearing anything about it one way or another.

"Looking forward, it will be interesting to see how the Obama Administration will respond."

The best predictor of future behavior is past behavior. How did Barack Obama respond to political/patronage hiring in Chicago City Hall, which was in his St. Senate District, and at Cook County? Even the Sec. of State's office while Obama was a St. Senator and convicted George Ryan was the SOS, didn't draw any attention or public positions from Barack Obama at the time. Stacking the ranks of government employees with people other people sent (the Chicago way) is not something Barack Obama has evidently noticed, commented about, frowned upon, introduced legislation to prevent, or otherwise engaged in behavior that would indicate he gives a crap about political hiring. Of course those were all his own Chicago thugs taking part, so maybe its different if they are not part of the Combine.

Why aren't these same people calling for Gonzales and Bush to be prosecuted for this political hiring, not calling for Mayor Daley's prosecution for the political hiring that's gone on under his nose for years and years? Maybe because they are more interested in winning than the princples they pretend to represent.

There's a real treasure trove of hilarious (or hilariously depressing) stuff in here:

Schlozman alternately referred to the Appellate Section lawyers hired during prior administrations as “Democrats” and “liberals,” and said they were “disloyal,” could not be trusted, and were not “on the team.” Flynn said Schlozman pledged to move as many of them out of the Division as he could to make room for the “real Americans” and “right-thinking Americans” he wanted to hire.

In another e-mail to a Division front office Counsel dated January 12, 2004, Schlozman inquired about an attorney being referred as a candidate for a career civil service position by asking, “how does he view the world, if you know what I mean?” In the e-mail, Schlozman added, “(and for God’s sake, don’t forward this email!).”

Schlozman sounds like a real clown, if you know what I mean. (And for God's sake, don't post this comment!)

Orin: I'm curious what your sense of hiring [at DOJ] during the Clinton administration is based on? I haven't been able to find much information on that.

Going through the process of being hired at DOJ during the Clinton Administration, mostly, which includes seeing who had interviews, who got offers, etc. among the people I knew.

How can anyone be so stupid to put these thoughts down in an email? In this day and age?

IG Glenn Fine's report identifies the underlying lack of integrity at Justice. The situation at DoJ is like sand in a gearbox, like metal particles in an automatic transmission. It goes beyond the sinecure, past sabotage and overshoots open barratry. It eclipses the persistent perjuries of former AG Alberto Gonzales or the rigging of the System.

Kudos to Glenn Fine on another "Fine" report. But i would really commend people to Andrew M. Lobaczewski's POLITICAL PONEROLOGY, A science on the nature of evil adjusted for political purposes, 330 pages.

This report is an absolute joke. The legal analysis is really weak. And it isn't particularly persuasive unless you already agree with it. I mean, the report says that, for those sections where Schlozman didn't supervise hiring, "[w]e did not find evidence that political or ideological affiliations were factors in the hiring for these sections." Did they review the resumes and compare the ideological orientations as they did with the other sections? No, apparently not. It's just a crap report from another liberal at DoJ.

How can anyone be so stupid to put these thoughts down in an email? In this day and age?

Conservative affirmative-action hire?

Orin - does Federalist Society membership signal Randy Barnett, or Ed Meese?

I noticed several years ago that DOJ hiring standards had become very lax if you had the right people recommending you, including one person who was close to a top Bush fundraiser but who could only have passed a drug test if that meant you had taken at least 70% of the drugs listed.

Nick

Commment withdrawn, with apologies. It's only the legal anlysis that's weak.

Orin: I'm curious what your sense of hiring [at DOJ] during the Clinton administration is based on? I haven't been able to find much information on that.

Professor Kerr response:
Going through the process of being hired at DOJ during the Clinton Administration, mostly, which includes seeing who had interviews, who got offers, etc. among the people I knew.

Yet CCIPS in the Criminal Division nevertheless hired some young guy named Orin... go figure!

But seriously, having been involved in the career attorney hiring process at DOJ during part of the Clinton Administration (after having originally been hired during the reign of Ed Meese, I might add), I think I can affirm that in my little non-ideological corner of the Department, "ideology" really didn't make the radar screen of hiring criteria. Shockingly, competence, intelligence, and experience actually mattered to those of us on the hiring committee. Then again, the career hiring process was almost entirely controlled by career types in those days, except for an approval of the hiring committee's recommendation from the relevant political appointee at the conclusion of the process. I recall very few times the hiring committee's recommendation wasn't approved, and those few occasions generally involved equally-qualified candidates where the political appointee overruled what was basically a coin-flip.

I think most of us have seen the public reports about how the process was considerably altered more recently, when DOJ suffered from an acute infestation of overenthusiastic Liberty University Schedule-C types who were apparently encouraged to run amok. Sadly, it sounds like Schlozman was part of that infestation. One can only hope that, given the outcry from that fiasco, incoming DOJ management won't make the same kind of mistakes.

Why the Liberty slur? Given the day's revelations, should it not be "GW Schedule-C types?"

A TPM reader asks an interesting question about the failure to bring charges against Schlozman:

Doesn't it seem a little odd that when you have a ball player (Roger Clemens) who lies to Congress about steroid use in baseball, the U.S. Attorney for DC convenes a grand jury to consider a perjury indictment, but when an official of the Justice Department (Bradley Schlozman) lies to Congress about trying to politicize the civil service within DOJ, the U.S. Attorney fo DC passes on further investigation or prosecution? Which really seems like the more significant problem for the country?

It does make you wonder.

Orin: I'm curious what your sense of hiring [at DOJ] during the Clinton administration is based on? I haven't been able to find much information on that.

Going through the process of being hired at DOJ during the Clinton Administration, mostly, which includes seeing who had interviews, who got offers, etc. among the people I knew.

You offer anecdotes as evidence?

a knight,

I never claimed to be an expert in Clinton Administration hiring practices. If your expertise on this is greater than mine, I do hope you will shed light on the issue.

The irony is that the Civil Rights Division needs more conservatives to carry out its statutory mission, and for the sake of balance and intellectual diversity.

In the past, qualified conservative lawyers have often been barred because of their philosophy.

The laws the Civil Rights Division is statutorily charged with enforcing protect everyone, not just the groups favored by the (overwhelmingly liberal) Justice Department career lawyers.

Although some liberal Justice Department lawyers might wish otherwise, those laws protect white males (see the Supreme Court's 9-to-0 ruling in McDonald v. Santa Fe Trail, 427 U.S. 273 (1976) and 6-to-3 ruling in Gratz v. Bollinger (2003)) and faith-based groups subjected to religious discrimination.

To achieve that protection, you need at least some conservative lawyers at DOJ, which has few of them now.

I have a Harvard Law degree and years of experience handling civil rights claims. But no government agency showed any interest in my applications during the Clinton Administration. (I would qualify as a socially-moderate Republican).

I was hired during the Bush Administration to work in the Education Department's Office for Civil Rights, only because the political appointees had input into the hiring decision.

I was much better qualified, in terms of experience and alma mater, than liberal attorneys hired around the same time for similar pay.

(I left a year later, despite the fact that my superiors --- both political and career people -- respected my abilities (I was offered a 25% raise by the acting head of OCR), when it became clear that OCR had no intention of changing its policies on a wide range of issues where those policies had already been abrogated by federal appeals court or (in a few cases) Supreme Court decisions. OCR managers under Bush knew that their job was not to rock the boat and antagonize liberals, lest that create anger among liberals on Capitol Hill, and distract attention from the Bush Administration's biggest priorities, which had nothing to do with OCR. Keeping Clinton-era liberal policies in effect was viewed as a necessary evil to avoid controversy by Bush political appointees at OCR).

Orin,

I'd appreciate your thoughts on the issues raised in the following comment. I don't think it's fair to put much stock in the IG's statistics or conclusions. He doesn't fully explain either. I state my reasons below.

—The IG doesn't compare the grades of the hires with the grades of the non-hired applicants. The grades of the hires may have been better than those of the non-hired.

—The IG doesn't compare the number of "Republican or conservative" applicants with the number of "Democratic or liberal" applicants. The former may have been significantly higher than the latter—thereby explaining the alleged discrepancy in the hiring statistics. (Note that a career who was interviewed stated that the number of Republicans and conservatives applying to the Civil Rights Division significantly increased with the change in Administrations. By the same token, the number of Democrats and liberals applying may have decreased.

—The IG's list of "Democrat or liberal" credentials does not include the American Constitution Society—even though Dummermuth testified that membership in the Society was viewed negatively and even though the IG considered the Society to be "liberal" in the IG's Honors Program report. That testimony means that there were applicants with Society membership, but where are those applicants? It would seem that those applicants must be included in the "neutral" category (at least applicants who didn't also have one the "Democrat or liberal" qualifications included in the IG's list). If so, the numbers of "liberals" that Schlozman hired would increase if Society members were hired but included in the IG's "neutral" category. (The fact that the IG considered the Society to be "liberal" for purposes of his Honors Program report but not for the Civil Rights report suggests that the IG is not applying criteria impartially but rather is applying criteria in the manner that will support the IG's conclusion of Schlozman's guilt.)

—The IG doesn't explain in detail the facts supporting his conclusion that there was no discrimination in favor of Democrats and liberals in the non-Schlozman hires.

—The IG accepts all evidence against Schlozman and discounts or doesn't mention any evidence for Schlozman. For example, the IG fails to mention that (at least according to Schlozman's attorney), Schlozman provided the IG with more than 2 dozen names of individuals Schlozman hired, knowing them to be Democrats or political liberals. See Statement by Schlozman's attorney. The IG also fails to mention that (again at least according to Schlozman's attorney) Schlozman took a polygraph, the results of which showed that Schlozman did not lie to the Hill. See Statement by Schlozman's attorney. Finally, the IG accepts testimony against Schlozman from a witness but discounts testimony for Schlozman from the same witness. It's one thing to entirely discount a witness's testimony as uncredible; it's another thing to find a witness credible when his testimony helps your case but uncredible when his testimony hurts your case. These facts suggest that the IG was not acting as an impartial investigator (as he's supposed to be); instead, the facts suggest that the IG trying to find evidence to support his preconceived conclusion that Schlozman was guilty.

—The IG often states that witnesses said X (with X always being damning evidence against the subjects of the report) without actually quoting the witnesses. Thus, the readers can have no assurance that the witnesses actually said X. In fact, such action suggests that the witnesses didn't actually say what the IG said they said (at least not as strongly). Otherwise the IG would have quoted the witnesses directly. For example, if a witness actually said "Schlozman refused to hire Democrats," why wouldn't the IG put the witnesses exact quote in the report? He did so with Shanetta Cutlar's statements (but she has her own problems—problems that arguably bear on her credibility but that the IG never mentioned). So why not do so with all of the witnesses.

—According to Schlozman's attorney, the IG "allowed former Civil Rights Division attorneys, at least one of whom Mr. Schlozman hired, to conduct the inquiry" into the propriety of Schlozman's conduct. See Statement by Schlozman's attorney. (I have no knowledge of whether the assertions—mentioned in this paragraph and earlier paragraphs—made by Schlozman's attorney are true. But the assertions seem like things that should be mentioned in an impartial report.)

—For both the Schlozman report and the Honors Program report, the IG apparently refused (in violation of IG policy) to allow the subjects of the report to respond to the report. (The IG's policy is, before releasing a report, to provide the report to the subjects and provide them the opportunity to provide the IG with a letter responding to the IG's conclusions. Any response letter is then appended to the end of the report. Look at other reports (such as reports about DOJ components, such as OJP or FBI) for examples of these letters.)

—The IG doesn't break the numbers down by politics versus ideology. As you noted, the IG's conclusion that consideration of ideology is inappropriate is not supported in the law, as shown by the IG's failure to cite any legal authority—in either the Civil Rights report or the Honors Program report—for his conclusion that consideration of ideology is prohibited by law. It may be that there is no statistical disparity on politics between the Schlozman and non-Schlozman hires.

As a side note, consider that every single circuit court to consider the issue has held that consideration of political affiliation when hiring for attorney positions does not violate the Constitution because such positions are confidential and/or policy-making positions. The only exception is for hiring of public defenders (because those attorneys represent the individual defendant rather than the government). If consideration of political affiliation doesn't violate the Constitution, then consideration of ideology doesn't either.

I recognize that the consideration of political affiliation is prohibited by the CSRA, but there is no similar statute prohibiting consideration of ideological affiliation. For that reason, my comments focus on the whether the Constitution prohibits ideological considerations. (It's questionable though whether the CSRA is constitutional to the extent, if any, that it hampers the President's ability to execute the law (e.g., by preventing him from hiring people who will zealously execute his policies).)

Although the IG argues that use of ideology as a proxy for political affiliation is inappropriate, he also makes the separate argument, in both the Civil Rights and Honors Program reports, that unadulterated consideration of ideology alone (i.e., not as a proxy) is unlawful. Despite that argument, he does not recommend that DOJ prohibit consideration of ideology; he only recommends that DOJ prohibit consideration of ideology as a proxy for political affiliation. This recommendation implies that the IG recognizes the fallacy of his argument on ideology (not as a proxy)—leaving one to wonder why he makes the argument in the first place.

Plus, it strains credulity to argue that it is unlawful to consider whether an individual will zealously enforce the policies of an Administration. Consider an Administration (such as this one) that supports the death penalty and is looking to hire an attorney for DOJ's Capital Case Unit. It is arguably frivolous (if not indisputably frivolous) to argue, for example, that DOJ cannot refuse to hire an applicant who states that he is opposed to (or lukewarm toward) the death penalty and could not argue in support of (or strongly in support of) the death penalty. In contrast, consider an Administration that believes that the Constitution forbids hiring practices that have a disparate impact and is looking to fill a position in the Employment Section of the Civil Rights Division. It cannot be unlawful for that Administration to refuse to hire an attorney who states that he does not believe (or is not sure) that the Constitution forbids such practices and could not argue (or strongly argue) that such practices are unconstitutional.

I suspect that the IG recognizes the fallacy of his argument on ideology but makes the argument anyway because he does not have sufficient evidence to make the case a discrimination based on political affiliation (or based on ideology as a proxy for political affiliation). Thus, I suspect the IG needs to argue about ideology to conflate and obfuscate the issues. This tactic allows him to imply—without evidence—that an individual violated the CSRA without ever offering any evidence supporting his implication.

Consider the IG's Honors Program report. That report was widely reported—by mainstream media as well as conservative bloggers (including, I believe, VC bloggers)—as concluding that the two political appointees on the screening committee violated federal law by considering political affiliation. But the IG makes no such conclusion. Rather, the report states again and again that the individuals considered "political OR ideological affiliation." Moreover, the report cites no evidence whatsoever that the individuals considered political affiliation (or proxies). (One should not mistake his assertion that individuals considered political affiliation (or proxies) as evidence supporting that assertion.)

Despite using a highly significant "or" and citing no evidence whatsoever of discrimination based on political affiliation, the IG's report was widely reported as concluding that such discrimination occurred. The fact that this "conclusion" was erroneously reported by conservative bloggers, who are typically better at fact-checking, shows the incredible success of the IG's language choices and strongly suggests that such choices were intentional.

These facts (in addition to others) suggest that the IG's statistics and conclusions should be viewed with skepticism. (Further reasons supporting skepticism of his statistics are apparent upon careful analysis of extensive stastical analyses in the Honors Program report. Such analysis reveals multiple problems with those statistics (e.g., sample size).)

(*This comment is not a comment on the propriety of Schlozman's actions and should not be taken as such. The comment is simply a comment on the propriety of the IG's actions and the credence, if any, to be given to his reports.)