Orin Kerr has a very interesting post asking whether ideology should ever play a role in hiring decisions at the Department of Justice. He introduces the reader to three potential interviewees: a conservative, a liberal, and a moderate. The three will be interviewing for two positions: one as a prosecutor prosecuting obscenity cases, and one as a lawyer with the Civil Rights Voting Section:
During the interviews for the two positions, both Connie the Conservative and Libby the Liberal made their personal views clearly known. In the interview for the position as an obscenity prosecutor, Connie the Conservative expressed enthusiasm for bringing more obscenity cases. “I’m deeply worried about preserving traditional values in America,” she explained. “I think your work is extremely important.” Libby the Liberal took the opposite view. “To be honest, I don’t think the government has any role trying to stop adult pornography,” she explained. “I’ll work on these cases if it’s my job, but I basically think this section should be shut down and you should go after some real criminals instead.” Moe the Moderate was more reserved, indicating that he didn’t have strong feelings about the work of the section either way.
The roles reversed themselves in the interview with the Civil Rights Division’s Voting Section. Libby the Liberal expressed great enthusiasm for the Voting Section’s traditional priorities. “I went to law school to fight injustice, and I think your work is incredibly important.” Connie the Conservative took the opposite view: “To be honest, I don’t think this section’s traditional work is needed in this day and age. I’ll work on these cases if I have to, but I basically think this section of the Civil Rights Division should be shut down.” Once again, Moe the Moderate was more reserved, indicating that he didn’t have strong feelings about the work of the section either way.
Kerr’s obvious point is that an ideological view on a particular type of case may well be a relevant consideration in hiring lawyers for these positions.
The most obvious way that it could be relevant is by demonstrating a healthy enthusiasm for the type of work the lawyer would be doing. An administration could reasonably view such a healthy enthusiasm as a positive.
But note also that a lack of enthusiasm for a particular type of case might also be considered a positive, depending upon the particular Administration’s priorities, and/or depending on how the enthusiasm is expressed.
For example, let’s say that the Administration in question does not consider obscenity prosecutions a high priority, and the applicant says: “I suppose I could prosecute obscenity cases in extreme situations, but I would view my job as primarily screening out cases brought by overenthusiastic agents. If you agree, I would have extra time to prosecute cases relevant to Homeland Security.” An administration might well view that ideological opposition to obscenity cases as a positive.
The flip side of the coin is that an Administration might view a marked ideological support for prosecuting a particular class of crime as a negative — something that could impair a prosecutor’s judgment, and cause them to bring weak cases. Nifong, anyone?
The application of all of this to the real world is obvious. It seems to me that the Civil Rights Division in particular has for years been populated with a self-selected crew of liberals who gravitate towards that sort of work. Some of them have taken a racialist perspective to their work that, in my view, impedes their ability to do their job properly.
For example, I told you about the former Civil Rights Division lawyer who complained that only 4% of attorneys in the Civil Rights Division were black. He said: “We would sue employers for having numbers like that” — without any consideration of statistics showing that only 1 to 2 percent of law graduates with high grades are black. (Department of Justice positions are highly coveted and generally go to students with high grades.) A mentality that says you sue employers based on numbers alone, without looking at the pool of qualified applicants, is not the kind of mentality I want to see at the Department of Justice. If I were running the division, an applicant who made a comment like that would never get hired, and I’m happy to see that the fellow who made that comment has left the division.
I also told you about a former Justice Department official who said that prioritizing voter fraud cases “indicated an intent to depress voter turnout in minority and poor communities.” To me, this indicates a fundamental lack of concern for voter fraud — disturbing in a high-level DoJ official.
If I were doing the hiring, I’d be reluctant to hire people who made statements like the above — just as I would be reluctant to hire someone who demonstrated a rabid desire to prosecute obscenity cases, which I consider a waste of time.
So it seems to me that in limited situations, a particular ideology can be a disqualifying factor, or at least something that the hiring lawyer should be able to take into account.