June 30, 2008

posted by Dave Hoffman

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".

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.

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.

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.

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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.

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.

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?

"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.

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 . . . ."