More on the DOJ Civil Rights Division Hiring Report:
I blogged below about the DOJ Inspector General report on hiring in the Civil Rights Division, and I wanted to point out that the report is really pretty amusing (in a frightening sort of way) for the details it offers about the hiring process. In particular, Bradley Schlozman seems to have never thought about the possibility that his e-mails would some day be made public, so he left a lot of gems for us to ponder.
Here's my favorite so far. At one point, a DOJ section chief had contacted the judge that an applicant had clerked for, and one judge apparently offered a negative review of the applicant. Noting that the judge was a Bush-43 appointed judge, Shlozman discounted the criticism in an e-mail to the DOJ section chief on the following basis:
Here's my favorite so far. At one point, a DOJ section chief had contacted the judge that an applicant had clerked for, and one judge apparently offered a negative review of the applicant. Noting that the judge was a Bush-43 appointed judge, Shlozman discounted the criticism in an e-mail to the DOJ section chief on the following basis:
Okay, but just remember, Republican judges are generally far more demanding of quality, accuracy, and faithful adherence to statute and constitutional text than liberals, for whom activism and advocacy are the hallmarks of acceptability.Yeesh.
Related Posts (on one page):
- More on the DOJ Civil Rights Division Hiring Report:
- “My tentative plans are to gerrymander all of those crazy libs right[] out of the section.":
Your comments on the previous post indicate that the hiring practices at Civil Rights are striking because they differ so much from the Clinton era, which you say was equally political the other way. While you seem to agree that the things written by Schlozman are embarassing, I can't tell whether you think the IJ's report is unfair because it singles out practices that were at least as prevalent under the prior administration, just not so obviously so. Do you think that?
It has always seemed to me that Civil Rights is an area that liberals would be more interested in, and enthusiasm for this job would appear to be a desirable if not necessary qualification. Similarly, I would expect more conservatives to be excited about working for the Office of Immigration Litigation. Do you think Civil Rights would naturally attract more liberals?
Well, you weren't asking me, but you'll get my answer anyway.
I'd say classic liberals would be attracted to civil rights, and today's contemporary liberals would be attracted to today's Civil Rights, which seems to act as a grievance window
I think the arguments over Bill Lan Lee and Ms. Guinier resulted from friction over that role.
It's all in the eye of the beholder....
Please spare us the outrage, faithful adherence to constitutional text has been the minority method of interpretation for quite some time.
Of course. Courts should do what I think is right regardless of what the text says.
Scholozman hires. Having dubious qualifications, no experience and no
interest in civil rights legislation doesn't bode well for a career
enforcing such legislation.
Next stop: Dodge City dogcatcher.
No, I believe that would be, "the text means what I think is right regardless of what Courts say."
Rather, we discuss the eradication of conservative views while smoking dope and viewing gay porn at our Exterminate Israel fundraisers.
This whole thing is terribly embarrassing to the Division. There were some mediocre hires, but there were also some very good people hired who have been enthusiastically and competently enforcing the civil rights statutes. Given the less egregious but equally partisan hiring practices of the pre-Bush Civil Rights Division, it is likely that many of those good and effective lawyers would not have had a prayer of getting into the Division absent the big shake up.
Hopefully, moving forward, the Division can focus exclusively on hiring smart people with good judgment. I fear a return to the requirement of "demonstrated commitment to civil rights," especially when that commitment can only be demonstrated by membership in the ACLU, the NAACP, or NARAL. In the past, affiliation with Cato, IJ, the Becket Fund, or other conservative or libertarian civil rights organizations was apparently not taken all that seriously. A return to the old echo-chambery days will lead to continued narrow-minded hiring to the detriment of the Division, though not at detrimental as the late requirement of a blood oath of loyalty to George Bush and Gene Meyer.
Do you mean loyalty to the person who is President when the attorney is
hired, or attorney to each and every President the attorney may serve
under in the course of his career? A career attorney will see a lot of
Presidents come and go over the course of 20 or 30 years.
If these people would just do what about everybody else in this economy does, and move on after 5 years or so, we wouldn't have this squabble underway constantly. The staff would be freshened as a matter of course.
And if we do away with the entrenched, sclerotic bureaucracy, the rest of us won't have to put up with the bitter struggles of those who hunger to dominate it, or blunt others' attempts to do so.
Believe me, counselors, none of you are irreplaceable in your position. And as in most everything else, it'd be best if we maintain a healthy rate of turnover. Probably best for you, too.
I mean the President. When someone stops being President, he's not the President anymore, and a new person is.
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).
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.)
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