Balkinization  

Saturday, May 12, 2007

The elephant in Ms. Goodling's room

Sandy Levinson

Eric Lipton has an extensive story in today's (May 12) New York Times about Monica Goodling. titled "Colleagues Cite Partisan Focus by Justice Official." It details many of the ways that she thoroughly corrupted the process of hiring within the Department of Justice by taking a rabidly "partisan focus" for what is supposed to be a non-political process of hiring. Still, the story walks on eggs with regard to one of the most important aspects of Ms. Goodling, her religious zeal. Lipton mentions that she graduated from Regent Law School, '99, and notes that that is Pat Robertson's law school. But there has still been no genuine examination of the extent to which Ms. Goodling used her remarkable clout within the Justice Department to focus on hiring not only conservative Republicans, but also persons who were equally opposed to what she no doubt believes is the sinful secularism of modern society. I doubt that she was preferring Evangelical Protestants as such; rather, I think the key to being hired might well be a strong religious identification, and one proxy for that was attending identifiably religious law schools, including, for example, Brigham Young, Regent, Catholic University (though not Georgetown, I strongly suspect), or Marquette. Sooner or later, someone should go through the bios of people hired over the past three years or so, i.e., since the triumphalist election of George W. Bush in 2004 (I refuse to call it a "re-election"), and see how many of them graduated from such schools, as against more secular schools (and, of course, how many of those hired from the latter had been vetted by virtue of their affiliation with the Federalist Society and the like, apparently something highly important to Ms. Goodling). Just to be clear, I think that the DoJ should be hiring lawyers from all sorts of backgrounds; it would be outrageous if a strong religious identity or memership in the Federalist Society were a disqualification. But I think that it's ever more clear that with the Bush Administration we're not remotely talking about genuine respect for the mosaic of American culture. They are eager participants in a full-scale culture war and should be recognized as such.

No one really knows how to address the issue of religion in contemporary politics. It is considered tactless in the extreme to note that the five-justice majority in the recent Carhart case are all Catholics, just as, I suppose, umbrage might be taken if Justices Ginsburg and Breyer were regularly identified as Jewish. But this is the elephant in the room, and it's not going to go away.

[UPDATE: It is obviously the case, as one of the comments below notes, that not all Catholics (or any other group) are alike. Justice Brennan is the clearest counterexample to, say, Justice Scalia. That being said, I think it relevant to note that Brennan grew up in a world typified by John Kennedy's facile speech to the Houston ministers in which he reassured them about the basic irrelevance of any Catholic beliefs he might have held (and his biographers suggest that Kennedy indeed did not take religion very seriously). Brennan therefore had no trouble assuring the Senate Judiciary Committee that in any conflict between the Constitution and the Church, he would always prefer the Constitution, a viewed deemed "idolatrous"--I think for good reason--by Thomas Shaffer. The modern Catholic church is considerably more more militant with regard to disciplining political figures who stray too far from its teachings. as exemplified by Pope Benedict's comments this past week in Brazil about the self-excommunication of politicians who support abortion rights. I have a piece forthcoming on this general topic in an issue of the St. Thomas Law Review devoted to a fascinating symposium held there last year on the occasion of the Supreme Court's becoming majority Catholic. (For obvious reasons, a Catholic law school can openly discuss such a topic in a way that no other law school can.)]

Comments:

Sandy: I think you understate the problem. Democracies work because those out of power believe that the electoral rules will provide them a fair opportunity to regain power. The elephant in the room is how Goodling's actions, which I doubt were those of a rogue agent, have undermined that trust. One of Bush's legacies will be a poisoning of the electoral process which will prove difficult to cure. Miguel
 

I have a piece of ancedotal evidence. One of my friends at law school applied for a 2l summer position with the Civil Rights division of the DOJ. He has impeccable credentials and should have been a shoo-in. But, his resume screams hardcore lefty. He really wanted that position and he was a strung along for a while before being rejected. I'm pretty convinced he should have gotten the job--of course I have no way of proving it.
 

I had fun watching Bill Maher's version of the story.

http://www.youtube.com/watch?v=7kZqFiXADxg

Enjoy.
 

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This is a service by bizleadsnet directory of web logs.
 

The efforts of conservative religious schools to funnel young grads to public service was discussed in "God & Country" by Monique El-Faizy.

It's a bit hard, I'd think, to prove something like this. It is akin to racism -- the "in" crowd here favors certain religious universities since they promote a conservative message and a gung ho desire to put it into policy (perhaps also more loyal and single focused them some others, also favored by loyal Bushies).

So, it might be difficult to prove exactly why they were chosen. That is, their religion or their partisan/policy bona fides.

As to the Catholic bit, this bothers me since it tends to be voiced stereotypically. Justice Brennan is Catholic. Various other Catholics in public service are pro-choice as a legislative matter. As are many run of the mill Catholics.

If any, evangelical/fundamentalist Protestants often are more gung ho about criminalizing abortion ... consider that the Roman Catholic Church isn't gung ho about contraceptives and homosexual unions either. Kennedy, however, wrote Lawrence v. Texas.

The "five Catholics" comments I have heard/read have failed to note such things, including on liberal radio shows. This is honestly very bad pool.
 

btw, did you collague here watch "Amazing Grace?" A follow-up would be useful, if he did.
 

Professor Levinson:

Sooner or later, someone should go through the bios of people hired over the past three years or so, i.e., since the triumphalist election of George W. Bush in 2004

The recent appointees appear to be your usual elite law school grads. Sorry, no cabal of attorneys from religious law schools here.

Since last March, the administration has named at least nine U.S. attorneys with administration ties...They include:

Tim Griffin, 37, the U.S. attorney for Arkansas, who was an aide to White House political adviser Karl Rove and a spokesman for the Republican National Committee. [Tulane]

Rachel Paulose, 33, the U.S. attorney for Minnesota, who served briefly as a counselor to the deputy attorney general and who, according to a former boss, has been a member of the secretive, ideologically conservative Federalist Society. [Yale]

Jeff Taylor, 42, the U.S. attorney in Washington, D.C., who was an aide to Utah Sen. Orrin Hatch and worked as a counselor to Gonzales and to former Attorney General John Ashcroft. [Harvard]

John Wood, U.S. attorney in Kansas City, who's the husband of Assistant Secretary of Homeland Security Julie Myers and an ex-deputy general counsel of the White House Office of Management and Budget. [Harvard]

Deborah Rhodes, 47, the U.S. attorney in Mobile, Ala., who was a Justice Department counselor. [Rutgers]

Alexander Acosta, 37, the U.S. attorney in Miami, who was an assistant attorney general for the Justice Department's civil rights division and a protege of conservative Supreme Court Justice Samuel Alito. [Harvard]

John Richter, 43, the U.S. attorney in Oklahoma City, who was the chief of staff for the Justice Department's criminal division and acting assistant attorney general. [University of Virginia]

Matt Dummermuth, the U.S. attorney in Iowa, who was a Justice Department civil rights lawyer. [Harvard].

Rick White, the appointee which Karl Rove recommended, graduated from Dartmouth Law.
 

"Bart" ignores that the top-tier U.S. attorneys are only a small fraction of the people that were hired (and of those that Goodling may have had a hand in vetting). One could even say that underlings have even less reason to be "vetted" for political leanings, not being "political" appointees that are^h^h^hshould be confirmed by the Senate, and that should be non-partisan administrators of justice.

And I note that Prof. Levinson followed his question up with: "...and, of course, how many of those hired from the latter [non-Regent-type school grads] had been vetted by virtue of their affiliation with the Federalist Society and the like, apparently something highly important to Ms. Goodling)" "Bart" doesn't answer that one.

Say, I was student treasurer of the Boalt Federalist Society. Maybe I ought to float my resume around the DoJ. Actual qualifications seems to be bare-bones, so I ought to be a shoo-in.

Cheers,
 

Arne Langsetmo said...

And I note that Prof. Levinson followed his question up with: "...and, of course, how many of those hired from the latter [non-Regent-type school grads] had been vetted by virtue of their affiliation with the Federalist Society and the like, apparently something highly important to Ms. Goodling)" "Bart" doesn't answer that one.

I linked to the bios of the recent US Attorney hires. I agree they were hired because of their conservative credentials. Bush should have done this from the beginning like Clinton.

Say, I was student treasurer of the Boalt Federalist Society. Maybe I ought to float my resume around the DoJ. Actual qualifications seems to be bare-bones, so I ought to be a shoo-in.

Being a Federalist or a member of the various conservative public interest legal groupsis a qualification if you are looking for conservative lawyer or jurist. This is no different from a Dem like Clinton looking for someone with the liberal legal background of a Ginsberg.

It would be a mistake to underestimate the effectiveness of graduates of new religious law schools like Regent. The Boston Globe just had a piece on the law school and Barry Lynn warned not to underestimate Regent graduates, who are successfully litigating against his Americans for the Separation of Church and State around the country.

The law has been dominated by the left for a generation or two now and you folks have become complacent and a little condescending. We Federalists were on the receiving end of your disdain in my generation, but we are now in positions of power throughout the legal system and are changing the law. The Christian lawyers have been doing the same thing for the past decade or so and are winning in court. By all means, keep (mis)underestimating us.
 

I was student treasurer of the Boalt Federalist Society.

The mind reels at the thought.
 

Mark Field:

[Arne]: I was student treasurer of the Boalt Federalist Society.

The mind reels at the thought.


Why? Someone had to keep an eye on them (and encourage them to set up debates rather than just bring in speakers from the Federalist Society™ "approved" [read "subsidized"] list, which I succeeded at, getting Rachel Moran to go up against Linda Chavez on bilingual education, for instance).

Plus it gave me a subscription to their newsletter (got to know who the major names and players were, like Meese and C. Boyden Gray), and a subscription to the HJLPP ... until they figured out I wasn't going to pay them any more dues or contribute....

Plus, it might come in handy should business taper off and I need a job in DC....

FWIW, my sweetie spends more of her time around the big RW muckety-mucks nowadays than I do (she wisely keeps me at a distance from the social functions so I don't end up going nose-to-nose with them over dinner).

Cheers,
 

"Bart" DePalma:

Being a Federalist or a member of the various conservative public interest legal groupsis a qualification if you are looking for conservative lawyer or jurist. This is no different from a Dem like Clinton looking for someone with the liberal legal background of a Ginsberg.

It's not a "qualification". It's mandatory in some instances. Ferinstance, Clarence Thomas will hire only FedSoc clerks (maybe that accounts for the bizarreness of his opinions).

We Federalists were on the receiving end of your disdain in my generation, but we are now in positions of power throughout the legal system and are changing the law. The Christian lawyers have been doing the same thing for the past decade or so and are winning in court. By all means, keep (mis)underestimating us.

What's this "we" there, "Bart"? Got a mouse in your pocket? Tell me what some small-time DUI lawyer in a town that should by all rights claim to have no such clients has to do with the levers of power....

Cheers,
 

I'm grateful to Bart for his list of US Attorney appointees, which cuts against my hypothesis. I confess that I was thinking of less visible hirees, i.e., people brought into the Honors Program or initial hirees at the DOJ. It would not be surprising if there are at the present time relatively few graduates of religiouis schools with the requisite experience to be US Attorneys. But my surmise is that Ms. Woodling has been salting away a cadre of such people in the DOJ (and that at least some of this cadre have been hired over the conventionally-credentialed people listed by Bart, which in itself is scarcely cause for concern, depending on the numbers). But, of course, one can also describe such hiring, if it has been occurring at the rate I suspect, could be described as an "affirmative action program" for religious applicants, which obviously raises at least a couple of constitutional problems regardless of one's ordinary political affiliations.
 

Professsor Levinson,

I agree that its troublesome if the hiring process becomes too politicized, see my earlier post.

Nevertheless, from all the professors and attorneys that I know who worked in the DOJ, the vast majority that are conservatives worked in Republican administrations and the same goes for liberals in Democratic administrations. Is it just purely self-selection? Whether it has been or not, it seems that they has not been very much cross-over regardless of the politicization of the process.
 

Edit: Whether it has been or not, it seems that there has not been very much cross-over regardless of the politicization of the process.
 

Here's a somewhat clearer example of what's going on. Apparently the Administration has decided to appoint an unqualified (per statute) lawyer to the number two spot in the USPTO.

Patent Law Blog


Q: Why pick a qualified GOP lawyer when you can pick an unqualified GOP lawyer?
A: Because, as with Harriet Miers, loyalty is trumps. Just ask Alberto.
 

Just a note to Arne Langsetmo:
Could you stop with the quotes around Bart DePalma's name. He's a schmuck but still, it's a bit much. Do you refer to "Sandy" Levinson?
Just make your points and leave it at that. I could do withour the "cheers" as well, since it's both unnecessary and false given the context, but it's not worth arguing.
 

D. Ghirlandaio:

Could you stop with the quotes around Bart DePalma's name. He's a schmuck but still, it's a bit much. Do you refer to "Sandy" Levinson?

I call him "Prof. Levinson" (or occasionally "Prof. Balkin" when I'm not watching the attributions carefully enough). You can call me anything you want.

"Bart" calls me "Arne Langsetmo" or "arne", as the case may be.

I could do withour the "cheers" as well, since it's both unnecessary and false given the context, but it's not worth arguing.

Maybe you're making an assumption you shouldn't (have you checked out my typing skills, ferinstance?). FWIW, there's others that sign their names at the end, even when the same as their login. Perhaps if you're of the opinion that there's better things to argue (such as "Bart"'s various dishonesties), you should do so first yourself.

Cheers,
 

"Bart" calls me "Arne Langsetmo" or "arne", as the case may be."
Only you use scare-quotes "Arne."

I'm not opposed to insult. I'm not a polite person by nature, but I'm annoyed by biting passivity: If someone made a comment about the Democrat party in my presence, I'd probably knock him on his motherfucking ass.
Coy superiority is an affectation: it masks something. It's a form of cowardice.

If you can crush Bart's arguments just do it. But your manner annoys me almost more than his ideas, and that's not an easy thing to do.

"cheers"
 

Bart writes:Bush should have done this from the beginning like Clinton.

Bart, your incessant attempts to somehow vindicate gWb by reference to Clinton are not only tired, but serve to discredit your reasoning by virtue of reveling it as political and nothing more.
 

bitswapper said...

Bart writes:Bush should have done this from the beginning like Clinton.

Bart, your incessant attempts to somehow vindicate gWb by reference to Clinton are not only tired, but serve to discredit your reasoning by virtue of reveling it as political and nothing more.


I had no problem with the Clinton Administration firing George I's US Attorneys and putting in his own folks. Elections have consequences, these are political appointees and Clinton had every right to put in his own team to pursue his policy objectives like suing the suing the tobacco industry.

Are acts like suing the tobacco industry political? Of course they are. The claim that the DOJ is completely apolitical and US Attorneys may not be removed for political reasons is partisan hogwash to justify a baseless investigation against Mr. Bush. Mr. Bush hardly needs to point to Mr. Clinton for justification for anything. I am merely illustrating illustrating the truth of my argument by citing to the actions of the past two Presidents.
 

D. Ghirlandaio

you're in the wrong place. your psuedo-macho knock'em on their ass stupidity belongs down at the monster truck rally.

no one cares if you like arne's style or not.

maybe we can all agree that arguing about it is even more stupid than paying attention to bart's childish willful denial of reality for whatever pathetic motive.

they're called verbal skills man...

but hey feel free to knock me on my ass... maybe i will learn not to annoy you....

chump
 

Bart,

Bill Clinton replaced all US Attorneys upon coming into office, as did a whole string of Presidents before him. George W. Bush did the same when he came into office, despite your attempts to imply otherwise. All Presidents install US Attorneys who will pursue their objectives. No one is criticizing Bush for that.

What we are criticizing Bush for is strong indications that he was using the Justice Department and US Attorney prosecutions as tools for swaying elections. In the words of Bart De Palma, stop being willfully obtuse.
 

D. Ghirlandaio:

If you can crush Bart's arguments just do it....

Who ever said it's an "either/or"? I use ridicule, sarcasm, devastating debunking, plenty of cites, a person's own words against them, or whatever seems to be called for.

... But your manner annoys me almost more than his ideas, and that's not an easy thing to do.

You need to get your priorities straight, man. I personally get annoyed by deliberate misrepresentiation, demonstrably false assertions, and outright hypocrisy. They are, to my mind, far more poisonous to the social comity (and to rational discourse) than some violation of Judith Martin's rules.

Cheers,
 

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