A lot of recent news stories echo the claim that the Bush Administration has improperly politicized hiring of career lawyers at the Justice Department (DOJ). There’s an interesting question lurking in these stories: Should a lawyer’s views of public policy play any role in whether they are hired? And specifically, if an attorney is applying for a position enforcing a politically controversial set of laws, should the attorney’s view about those laws enter into whether they should be hired for a career lawyer slot?
At first blush, it’s easy to say the answer is “no, those views should never matter.” And perhaps that’s the right answer. But I think there are actually some interesting issues lurking here, and I wanted to offer a hypothetical that I hope will illustrate them.
Imagine that DOJ has two openings for entry-level career lawyers. The first opening is in the Criminal Division’s Child Exploitation and Obscenity Section, for a position prosecuting obscenity cases. The second opening is in the Civil Rights Division’s Voting Section, for a position bringing civil suits against states and counties for racial discrimination in the operation of their elections.
There are three equally-well-credentialed applicants for the two positions. The first is Connie the Conservative, a very conservative young lawyer who was President of the BYU Federalist Society. Connie clerked for Judge O’Scannlain on the Ninth Circuit and is now at the conservative-leaning DC office of Kirkland & Ellis. The second candidate is Moe the Moderate, a completely nonpolitical mushy middle-of-the-roader. After graduating from Penn and clerking for Judge Prado on the Fifth Circuit, Moe has been working at a large litigation firm in Philadelphia. The third candidate is Libby the Liberal, a very liberal young lawyer who was very active in the NYU chapter of the ACLU. After clerking for Judge Reinhardt on the Ninth Circuit, Libby has spent the last few years working at the liberal-leaning San Franscisco office of Morrison & Foerster.
During the interviews for the two positions, both Connie the Conservative and Libby the Liberal made their personal views clearly known. In the interview for the position as an obscenity prosecutor, Connie the Conservative expressed enthusiasm for bringing more obscenity cases. “I’m deeply worried about preserving traditional values in America,” she explained. “I think your work is extremely important.” Libby the Liberal took the opposite view. “To be honest, I don’t think the government has any role trying to stop adult pornography,” she explained. “I’ll work on these cases if it’s my job, but I basically think this section should be shut down and you should go after some real criminals instead.” Moe the Moderate was more reserved, indicating that he didn’t have strong feelings about the work of the section either way.
The roles reversed themselves in the interview with the Civil Rights Division’s Voting Section. Libby the Liberal expressed great enthusiasm for the Voting Section’s traditional priorities. “I went to law school to fight injustice, and I think your work is incredibly important.” Connie the Conservative took the opposite view: “To be honest, I don’t think this section’s traditional work is needed in this day and age. I’ll work on these cases if I have to, but I basically think this section of the Civil Rights Division should be shut down.” Once again, Moe the Moderate was more reserved, indicating that he didn’t have strong feelings about the work of the section either way.
So imagine you’re in charge of hiring at the Justice Department. Who should be offered a job for what slot in what order? Should you favor Libby the Liberal over Connie the Conservative for the Civil Rights Division job? Should you favor Connie the Conservative over Libby the Liberal for the opening in the obscenity section? Does it depend on what the President’s priorities are, and in particular what the President’s views are about obscenity prosecutions and the traditonal work of this section of the Civil Rights Division?
Broadly speaking, should the candidate’s views — views that I think on most scales register as more-or-less “political” — make any difference as to whether they should be the one offered the job?
(Oh, and I should add, any similiarities between the characters here and those existing in real life are purely coincidental. Void where prohibited.)
UPDATE: I have amended the title of the post to make clear that the question is the candidate’s ideological views rather than partisan political affiliation. Hiriring on the basis of partisan affiliation is illegal, and I think we all recognize the harm of it; that was not intended to be within the scope of the question.