an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
[This just in from today's Washington Post: "Top Scientist Rails Against Hirings: Bush Appointees Land Career Jobs Without Technical Backgrounds." Read it and weep:
The president of the nation's largest general science organization yesterday sharply criticized recent cases of Bush administration political appointees gaining permanent federal jobs with responsibility for making or administering scientific policies, saying the result would be "to leave wreckage behind."
"It's ludicrous to have people who do not have a scientific background, who are not trained and skilled in the ways of science, make decisions that involve resources, that involve facilities in the scientific infrastructure," said James McCarthy, a Harvard University oceanographer who is president of the Ameican Association for the Advancement of Science. "You'd just like to think people have more respect for the institution of government than to leave wreckage behind with these appointments."
His comments came as several new examples surfaced of political appointees gaining coveted, high-level civil service positions as the administration winds down. The White House has said repeatedly that all gained their new posts in an open, competitive process, but congressional Democrats and others questioned why political appointees had won out over qualified federal career employees.
In one recent example, Todd Harding -- a 30-year-old political appointee at the Energy Department-- applied for and won a post this month at the National Oceanic and Atmospheric Administration. There, he told colleagues in a Nov. 12 e-mail, he will work on "space-based science using satellites for geostationary and meteorological data." Harding earned a bachelor's degree in government from Kentucky's Centre College, where he also chaired the Kentucky Federation of College Republicans.
The "transition" may give President-elect Obama time to make first rate appointments, but it also gives Republican gangsters an extra eleven weeks to do whatever they can, without, of course, a hint of accountability, to wreck the new Administration (can anyone spell "Midnight Judges"?) . Posted
by Sandy Levinson [link]
My honest answer to bitswapper is "I'm not at all sure." But I do think that one purpose of the Civil Service Act of 1886 is to make it extremely difficult to dismiss (or "purge") people on political grounds. And the point of the Post story, as in a similar earlier piece in the NYTimes, was that the Bushies are trying their hardest to shift political appointees to protected civil service slots.
There is always the option of setting appropriate job duties, functions, etc. At the least a decent supervisor can make sure that nothing but a waste of a salary occurs. At best they can be cleared out in months.
I heard a tale about a railroad that was stuck with a bunch of lifetime firemen after the steam trains were gone. They got to specify the duties though: come in on time, sit at a desk, take designated breaks and lunch. While not on break no talking, no reading, no nothing. They all resigned fairly soon.
The purpose of the Civil Service Act is to make dismissal for political reasons difficult, but not to make dismissal for incompetence difficult. If these positions actually require a scientific background, it should be possible to demonstrate that these political appointees are unable to perform their duties. Ask somebody whose chief qualification is leadership in the Young Republicans about a differential equation with singular perturbations (which arises in the study of the interaction of the atmosphere with the surface of the planet), and he probably isn't going to understand the question, much less come up with a coherent answer. It may, however, take quite a while and create a lot of legal costs.
Professor McCarthy is hardly in a position to criticize Mr. Bush's politicization of science. McCarthy was a primary "scientific advisor" behind Al Gore's work of fiction entitled "An Inconvenient Truth," a leader in the UN's IPCC when it negotiated a political compromise as to what the computer models actually showed concerning global warming, falsely cited to several dozen scientists who actually either never reviewed and the IPCC work product or openly challenged the findings and still backs the IPCC models which have all been spectacularly wrong over the past decade of global cooling.
The lame duck period is undoubtedly a serious defect in our system. Many an outgoing President from John Adams to Bill Clinton has used the unnaccountable time to try to sabotage his successor. James Buchanan is undoubtedly the very worst example, but George Bush is bad enough. At least we've shortened the interregnum from Buchanan's time, but nearly three months is still much too long.
Sandy Levinson said... But I do think that one purpose of the Civil Service Act of 1886 is to make it extremely difficult to dismiss (or "purge") people on political grounds.
I note that this didn't slow down the political purges of the justice dept, although I would suppose the CSA didn't apply to them. Perhaps the new democratic congress can pass a law blocking political aids from civil service positions.
I've seen some great suggestions for Bushie's moles. First, while it will take some work it won't be terribly hard for competent management to identify these folks. Then, as mentioned above, lay down strict performance standards and review frequently. Part of the job, right? So more work, yes, but not crippling for competent administrators. Another great idea was to put them in charge of p.r. That's what they do best, right? Well, throw a little jiu jitsu at them and put 'em to work aggressively promoting Obama's policies. Kind of like railroad firemen, only better. Again, with high performance standards it's a twofer. Either the Bushbots perform and enable the policies they swore to undermine, or they quit, or (preferably) both. Personally, I really like that one. And exactly how much control does Obama have over his staff, anyways? I find it hard to believe these bumpkins won't stick out like sore thumbs in an ecology of competence, and be subject to removal. Ultimately, however, the mole thing strikes me as a distraction, a relatively minor tactic meant to bleed energy from the incoming administration and distract attention in general, but most of all to give America the middle finger, to smear one last swipe of excrement on the wall after s***ting all over our country, people, and Constitution.
Plus, another thing that just occurred to me: even if dismissed these positions are great resume builders for loyalists, which for them makes it win/win. Either they stay on, and benefit accordingly, or they exit and use their newfound credentials to build careers. Nice. I still say remove any and all supervisory/decision making responsibilities and put 'em to work, NOW, with the jobs of aggressively promoting Obama's policies. Huge workload, all progressive, all the time. Problem solved.