“The outrage, of course, is it was only two years … “
posted by Dave Hoffman
Kathryn Jean Lopez, editor of the National Review Online, says about the DOJ’s practice of using political credentials in civil service hiring decisions:
“The outrage, of course, is it was only two years … “
Funny, I thought the outrage was that this behavior was illegal (under the CSRA and applicable Department regulations). Orin, over at the Volokh, agrees (”The basic picture is just disgraceful.”)
But Todd Zywicki, who earlier downplayed the “scandal” (”it seems obvious that merit alone has never the sole criterion for securing these positions, and that a variety of other personal, geographic, and demographic factors have always played into these decisions”) hasn’t spoken up to criticize the Administration, and other prominent conservative legal voices have been equally silent. (I don’t think Glenn Reynolds has said a thing about the report: readers can correct me if I missed it among the many posts about Obama’s foibles).
Were the situation reversed – if a liberal administration conceded that it broke the law by hiring liberals when conservatives were more qualified for the positions, a minor firestorm would have erupted. But this scandal has been basically ignored by the big media outlets. Sam Buell, writing to Leiter, puts it starkly:
I know we’re supposed to welcome the Federalist Society everywhere for its wonderful contributions to intellectual diversity on campus but, when reading this document, it’s hard not to fear–among some of its influential members–a sinister agenda with quite a long view to transform the bar into an organ that serves one particular set of ideological ends while cloaking itself in professionalism. “We want our place at the head table! … Right, thanks, now that we’ve got it, you can’t have yours anymore.” I’m hard-pressed to think of a similar scenario, actual or even plausibly imaginable, involving members of a mainstream law organization that is left of center.
The response to this, I guess, is that legal organizations dominated by left-of-center lawyers (like law schools and the DOJ) do discriminate against conservatives, but implicitly. To combat this insidious bias, conservatives in the administration had to break the law explicitly. (Which law, judging from the comments on the VC, conservatives see as a pretty silly to boot.) Just like in legal academia, the DOJ supposedly needs to implement conservative affirmative action: hiring less qualified, less skilled, lawyers to “level the playing field”. [It's probably just nasty to point out that sounds like Senator Hruska's defense of Supreme Court nominee Carswell]
For me, the upshot of the report is that folks with conservative markers on their resumes who were hired at the DOJ in the relevant time periods should face a degree of skepticism about their skills, acuity, and worth that similarly situated DOJ employees do not. For those time periods, being hired at the DOJ is now a (at best) a noisy signal of a lawyer’s quality. What a terrible shame.
Additionally, the scandal is a black mark against the Federalist Society, which it would do well to expunge by publicly repudiating the Bush Administration’s affirmative action on its behalf.
June 30, 2008 at 3:18 pm
Posted in: Current Events
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Responses (10)
George - June 30, 2008 at 5:18 pm
That is outrageous. If they had only advised and condoned torture, then they could get tenure at Berkeley.
Face it, these people will likely not suffer for what they did, and even if they were punished, it would not come from within the “profession”.
Humblelawstudent - June 30, 2008 at 5:31 pm
Professor Hoffman,
So do you believe that an upshot to the hiring of African American law professors and other similiarly situated minority professors is that they “should face a degree of skepticism about their skills, acuity, and worth that similarly situated law professors employees do not?”
After all, universities and law schools specifically try to hire such minority professors for much the same justification as the DOJ’s.
dave hoffman - June 30, 2008 at 5:45 pm
I’ve heard from minority professors that they feel this skepticism all the time.
They shouldn’t. The problem is that your analogy is bad: the DOJ was taking candidates with significantly weaker credentials, indeed ones that ordinarily would render them unqualified, for jobs on the basic of political affiliation, a kind of decision making in public employment that is unlawful.
By contrast, most people who apply for law jobs are from elite institutions already and would be fine law professors. Law schools practicing affirmative action in hiring never, in my experience, say that we should take candidates that aren’t otherwise qualified (contra the DOJ) – they say that among the many qualified candidates we should count as a factor diversity in race, ethnicity and gender, to the extent that it help the faculty reflect the student body, thus improving students’ experiences. That kind of decision making (1) isn’t illegal; (2) doesn’t result in the hiring of unqualified individuals because of a characteristic unrelated to likely job performance. Whether it is a good idea seems to me to depend on a complicated set of trade-offs and analysis – how much does a professors’ ethnic/racial/gender diversity matter to the students’ learning experiences / how much should we take into account barriers to accomplishment / etc. that are way beyond the scope of this post.
On the merits, though, I’ve got to say that the case for conservative preferential hiring is weak. What structural barriers to talent exist for conservatives in doing well in law school and thus getting a DOJ job? Why can’t smart conservative folks get into H/Y/S and, once there, do well on blind-graded exams? They can, and do, and therefore hiring weaker candidates simply because they are federalists means the DOJ’s lawyers are, on balance, less smart and accomplished than they used to be.
Humblelawstudent - June 30, 2008 at 6:49 pm
Professor Hoffman,
I’ve scanned through the Hiring Report, and I didn’t see much evidence that the quality of the hires suffered significantly because of the hiring practices by the DOJ in 2002 or 2006. If I’m correct, then the analogy is apt.
Amy - June 30, 2008 at 7:35 pm
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read the report - June 30, 2008 at 7:54 pm
I didn’t pore over the 115 page report, but can Professor Hoffman or someone else cite the pages where it was concluded that the process selected people who were unqualified?
I’ve readily found the pages where it’s stated that normal academic requirements were initially used and then markers of liberal politics were used to “strike” or “de-select” some who had been initially chosen. But I can’t find the pages where it’s stated that unqualified conservatives got a massive bump.
JP - July 1, 2008 at 2:08 pm
I second the comments requesting that Prof. Hoffman provide support for his assertion that unqualified conservatives were selected. My understanding of the report is that in ‘02 and ‘06, specific members of a screening committee were substantially more likely to ding liberal than neutral applicants, and somewhat less likely to ding conservative than neutral applicants. Moreover, the applicants before the screening committee had already been chosen by career DOJ attorneys.
The upshot of the report is really that ‘02 and ‘06 applicants with “liberal” credentials who weren’t hired should feel better about themselves.
Also, I think the premise of Prof. Hoffman’s post is kind of a “dog bites man” story: ’some conservatives justify or ignore reports of other conservatives doing bad things.’ I think you can replace ‘conservatives’ in that sentence with any other identifiable group, and it will still be true.
Rick Garnett - July 1, 2008 at 2:26 pm
Dave, why should this scandal be seen as a “black mark” against the Federalist Society? Don’t get me wrong — those who select participants in the Honors Program ought not to discriminate on the basis of ideology or political affiliation. (I hope that those who select Honors Program participants in the Obama Administration will not discriminate against “conservatives”, Evangelicals, pro-lifers, etc.) It seems to me, though, that the Federalist Society is not “the bad guy” here. If anything, it continues to be unfair, I think, that Federalist Society membership is seen in many quarters (including, I gather, on the staffs of not-a-few Senators and, I suspect, on some law-school hiring committees) as a troubling, even disqualifying, credential. No?
Nobody - July 1, 2008 at 4:43 pm
“if a liberal administration conceded that it broke the law by hiring liberals when conservatives were more qualified for the positions, a minor firestorm would have erupted. But this scandal has been basically ignored by the big media outlets.”
I find that hard to believe. Big media outlets would have ignored conservatives being rejected illegally because of their ideology. Conservative or libertarian blogs may or may not have cared – given that it basically happens all the time in academia, it would hardly be a new thing, especially to law professors.
John Doe - July 2, 2008 at 12:41 am
I suppose Mr. Hoffman implicitly concedes that the following claim is false — “the DOJ was taking candidates with significantly weaker credentials, indeed ones that ordinarily would render them unqualified . . . .”
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