Balkinization  

Wednesday, June 25, 2008

Partisan Entrenchment in the Civil Service: The Case of the Justice Department

JB

Back in 2006 I wrote about the Bush Administration's plans to stock the Justice Department with movement conservatives, based on earlier reporting by Charlie Savage. The Inspector General's office has now issued a critical report arguing that the Administration systematically and illegally used ideological and political allegiances to decide which law school graduates it would hire in the Department of Justice's honors program and summer internships, which are often stepping stones to permanent jobs.

Much of what I had to say in 2006 is still relevant today to understanding what is going on here.

There are many different techniques of partisan entrenchment. The most familiar is entrenchment of ideological allies in the judiciary, which nobody thinks illegal. The Bush Administration sought to entrench young movement conservatives in the civil service, particularly the Justice Department, reasoning that these lawyers, like judges, would serve for many years, and move the application and enforcement of federal law toward the right. As recent stories about the Office of Legal Counsel suggest, lawyers in the Executive Branch decide what much of federal law will be in practice, through their decisions about which cases to bring, which cases not to bring, which cases to settle (and on what terms), and through their interpretation of laws and regulations affecting the executive branch, which are often not reviewed by the courts.

Although partisan entrenchment in the judiciary is a familiar practice, the civil service rules are designed to keep the President from stocking the civil service (as opposed to political appointees) with his ideological allies. Political appointees come and go with each administration, while the members of the civil service may stay in place for long periods of time. As a result, the federal bureaucracy, including the Justice Department, acts as a counterweight against attempts to radically change the practical enforcement (or non-enforcement) of federal law. This sort of check-- and an emphasis on non-partisan expertise in hiring and promotion-- is part of the point of these civil service rules.

Even with these rules in place, no one doubts that political appointees, who staff the upper levels of the Administration, have significant effects on the general shape and direction of the bureaucracy, and on the enforcement and interpretation of federal law. But the Bush Administration sought to infiltrate every level of decisionmaking, reasoning that in this way it could promote movement values for the foreseeable future, even when Democrats controlled the White House. Equally important, it could block entry to too many lawyers that did not share the conservative movement's goals or were hostile to them.

As so often with the Bush Administration, its leaders pushed too hard, too quickly, and too clumsily to have their way, and they ended up breaking the law in the process. As before, the Administration might have been far more successful in entrenching its values and vision in the federal bureaucracy had it acted within the boundaries of the law. For example, it might have made sure that more movement conservatives applied for these jobs and made sure they were given a fair chance to compete, which would have predictably resulted in increased numbers of hires. Democrats might have grumbled but there would be little they could have done about it.

No matter who wins the election, there will probably be a strong push in the next Administration to return hiring in the Justice Department (and the civil service generally) to strongly non-partisan merit based policies. And if Obama wins, we may also see a mass exodus of movement conservatives from the Justice Department and other civil service positions when many of them discover that they will not be able to shape law in the way they want. As a result, the Bush Administration's efforts at partisan entrenchment in the Justice Department may not succeed. Moreover, by overplaying its hand, the Bush Administration has sensitized Congress and the public to the issue. People will be watching if the next administration tries something similar.

Comments:

"For example, it might have made sure that more movement conservatives applied for these jobs and made sure they were given a fair chance to compete, which would have predictably resulted in increased numbers of hires."

I don't think increased applications from young movement conservatives would have predictably resulted in more of them getting hired--at least not the ideologically pure 'movement conservatives' that this administration favors. On an even playing field, 'movement conservatives' from the likes of the Regent School of Law are not likely to make it past impartial gatekeepers looking for objectively talented lawyer-fodder. Bushco knows this; hence the law-breaking. Perhaps if they had been content with merely allowing the Federalist Society to vet the applications, all this would never have bubbled over. As with so many other agencies (FEMA comes to mind), 'movement' ideology trumped ability, even among a conservative pool. Even so committed a conservative as John Ashcroft eventually found the ideological soup too thick to breathe. His replacement is a perfect case-in-point.
 

i'm curious as to the basis of your speculation that we may see a mass exodus of bush hires when they find they cannot shape the law in an ideological way.

i wonder if that's true and/or if they can be forced out against their will based on a reasonably derived presumption, which should be explicitly stated, that they were illegally hired.

career hires may find it expedient to stay in large numbers based on the reasonable expectation of a change in the presidency and the selfish fact that they are on the first rung of what could be an excellent career.

if they stayed in sufficient numbers, they might well constitute an ideological filter well into the future requiring more direct action.

yet i can imagine stiff political costs if this issue is not handled deftly.

john dean mentioned in an interview not that long ago that telecom immunity does not let government officials off the hook for criminal liability, nor the telecoms themselves. dean highlighted comments from obama saying that he would task his AG with investigating whether or not criminal actions had been taken by the previous administration and that if sufficiently strong evidence were found criminal charges could be brought.

a rough paraphrase anyway.

[side question: is it possible to deny bush hires promotion as a way to encourage voluntary departures? it seems to me there may be a lot of problems with that.]
 

I think that the "mass exodus" predicted by Jack will come for a very simple reason: Thanks to Republican contempt for the institutions of governance, civil service salaries for lawyers are, by and large, significantly below what is available in the private market. I suspect that any halfway talented movement conservative will choose to cash in and build up a nest egg to allow a return to government, at a higher level, when the next Republican administration comes to power. (It will be interesting, though, to see how many explicitly "religious-right" movement conservatives, such as Monica Goodling, will be asked to join big-money firms. The American Enterprise Institute is more than happy to help bankroll John Yoo, Yale educated and a member of the Berkeley faculty. Are they equally welcoming of someone from Regent?)

Consider in this context the egregious Jim Haynes. Whatever his motives with regard to endorsing torture, they were not economic. I.e., he is a sincere ideologue, as I'm sure is the case with David Addington, who has paid a high economic opportunity cost to engage in his version of public service over the years. I'm sure that Hayes is making a significant multiple of his DOD salary at Chevron, as is true of almost any lawyer who has fled the DOJ for private practice. (My personal hope is that Haynes has to spend every penny of his Chevron salary on high-priced lawyers to represent him with regard to various hearings and, ultimately, prosecutions, but that no doubt reflects my own mean-mindedness.)

There will, of course, be a few lawyers like Alberto Gonzales who will be so tainted that they can't find respectable jobs. But I generally expect the vast right-wing conspiracy to protect its own so long as they don't, like Scott McClellan, decide to start fessing up.
 

Garth,

The conservatives preferentially hired appear to generally be highly competent attorneys. Their motivation to take the reduced pay of a government job will generally have been the expectation that it would lead to a position of power. For a great many of them, the election of Obama is going to dash their hopes. Most of them went into the Civil Service assuming they were on the fast track to high rank and great responsibility. Finding that the fast track is passing them by will send most of them to the streets.

If the managers at DoJ also start assigning them to the crap cases instead of those that give them exposure and resume fodder, I would expect that most of them will leave for greener pastures. Working on such cases will also not make it as possible to get stellar job-ratings. a lot of getting promoted in the government is all about building the image presented by your file. Remove the opportunities to shine, and the career is stalled. It's been a long term civil service technique for getting rid of the deadwood.

When I worked for Civil Service, the promotions were handled by board recommendations, with the board sifting those eligible and offering the final selection authority the top three individuals. That authority then selects one of the three.

It would be easy to always offer two names which are not conservative, and that way no laws are broken when the conservative is never chosen. I have no doubt that long time career employees from the Clinton era found themselves stalled in that way.

Identifying the conservative deadwood should be easy because of the partisanship in the hiring. The selection authorities can simply presume that anyone hired after, say, 1/1/2002 is conservative deadwood. That would, of course, be a rebutable presumption. I assume that like a medical "No-Code" situation in which extreme lifesaving procedures are no applied to someone unlikely to live much longer anyway, it should never be written down anywhere or spoken of in front of witnesses. (That does make it harder to practice consistently further down in the bureaucracy, since the boss can't say that is what he or she wants done. But the culture of the top rank will cause such practices to seep down the organization in much the way the grapevine works.)

The military used to keep a record of the ratings senior officers gave to juniors. (I assume they still do) Such records can show which senior raters were biased, so that their ratings were given less weight in promotion considerations. The success or failure of those given high ratings then becomes a measure of how much weight to give those ratings. It's a way of measuring consistency and fairness. The outliers in particular are usually very informative. Any modern computerized rating system should include this.

Any experienced personnel officer knows all this and a great deal more, as do most long term civil service (or military) employees. It doesn't even need to be discussed, except perhaps with the ignorant political appointees. That's part of what frustrates so many political appointees who try to transfer business experience into the government. It's a different culture which has developed to meet different environmental requirements. Outsiders rarely hang around long enough to understand the whys and hows.

Overall, I'd bet it was very likely that there will be an exodus of these conservative preferential hires. In fact, I'd bet it has already started. The resumes are already in the wind.
 

But will the "greening" of these departing lawyers from the Bush Administration improve the environment as opposed to the political environment?
 

for a good look at british bureaucracy i highly recommend cp snowe's brothers series.
 

This comment has been removed by the author.
 

Given the enormous predominance of the left in the government bureaucracy including DOJ, I sincerely doubt that the conservatives were unique in choosing their own.

Orin Kerr and others note the countervailing liberal hiring patterns at DOJ here.

Orin notes that it was understood that conservatives/libertarians needed to leave their conservative/libertarian activities such as the Federalist Society off their applications to the DOJ honors program during the 90s to have a chance of being accepted.

That was also the understanding when I applied to the Florida Supreme Court internship program out of law school. After all, nearly all of the Florida Supremes were liberal Dems. The Federalist Society was out, anything remotely liberal was in the application.

That policy of omission worked for Orin and I.

Apparently the liberal applicants to DOJ during the two years in question did not realize that there was a new sheriff in town and simply assumed that their liberal activities would continue to be a plus for applying to government. They were mistaken.
 

While stipulating that what went on here was wrong, what is your basis for using the word "return" in the following sentence?

"No matter who wins the election, there will probably be a strong push in the next Administration to return hiring in the Justice Department (and the civil service generally) to strongly non-partisan merit based policies."

As Orin Kerr has said, "When I applied to the Honors Program in the fall of 1997 (and was accepted), it was generally understood among conservative/libertarian applicants that being conservative/libertarian was a negative on a DOJ Honors Program application. It wasn't necessarily an automatic ding, except of course at the Civil Rights Division. But it was a negative in an intensely competitive process. As a result, it was common not to list extracurricular activities that signaled conservative/libertarian viewpoints and that were the kind of thing that an applicant might or might not list on a resume depending on the job. I followed that practice in my case. I remember thinking at the time that I wouldn't have gotten the job otherwise."

If Kerr is right, wouldn't your sentence be more accurately phrased as "return to a putatively non-partisan hiring process in which conservative credentials or affiliations are best kept quiet"?
 

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