Hiring Civil Servants Based on Political Views Is OKay
Orin Kerr writes at Volokh Conspiracy:
A lot of recent news stories echo the claim that the Bush Administration has improperly politicized hiring of career lawyers at the Justice Department (DOJ). There’s an interesting question lurking in these stories: Should a lawyer’s views of public policy play any role in whether they are hired? And specifically, if an attorney is applying for a position enforcing a politically controversial set of laws, should the attorney’s view about those laws enter into whether they should be hired for a career lawyer slot?
At first blush, it’s easy to say the answer is “no, those views should never matter.” And perhaps that’s the right answer. But I think there are actually some interesting issues lurking here, and I wanted to offer a hypothetical that I hope will illustrate them….
The question arises because it seems that 2001-2003 the young lawyers hired for the Justice Dept. who went to the Civil Rights Division had 0% Federalist Society members (in a conservative Republican Administration, the Ashcroft Justice Department!) and in 2004-2006 they were 40% of the hires. Democrats claim the 40% is a scandal, I think the 0% is a scandal, and Republicans, meek as always, are silent. This comes from thoughts I’ve had in studying the Japanese judiciary, a civil service system. My conclusion is that politics definitely should enter, and it is even acceptable to use political affiliation.
The specific issue now in the limelight is whether political appointees should defer to career civil servants in the hiring of new civil servants. The answer is clear: NO. If the political appointee defers, the hiring does not get less partisan. Rather, the opposite. Just think about the incentives. If the political appointee hires substandard new lawyers just because they support his political views, he will be criticized, and it will hurt his advancement. If the civil servant hires substandard new lawyers just because they support his political views, he will be criticized much less, and any criticism won’t matter, because his career is not in politics and he has a safe job till retirement. He can be as partisan as he wants. Knowing this, who will bother to criticize him? It’s useless, since he doesn’t have to listen.
Suppose, then, that we give total control to the political appointee– the Attorney-General or the underlings whom he appoints. What do we want the Attorney-General to do? Should he always appoint the smartest applicant, regardless of political views, or should he also weigh political views?
I think that he should look at both talent and political views. Suppose the Attorney-General wants to prosecute obscenity cases, and the smartest applicant tells him that he is a libertarian who will obey orders but will do his very best to shut down all obscenity prosecutions. The attorney-general should not hire him. Suppose the Attorney-General wants to end affirmative action, based on his interpretation that laws against discrimination prohibit discrimination against majority groups as well as minority groups. Most of his civil servant lawyers are typical liberal lawyers who are fighting the policies of the President and Attorney-General— the policies the voters want— tooth and nail, but who cannot be fired for their uncooperativeness. It would only make sense for the Attorney-General to order that 100% of the new hires agree with his policy views, unless he would have to dip so far down in the applicant pool that he would do better with no new hire at all. Otherwise, we are saying that the views of the civil servants should trump the views of the voter, and that it is the duty of the Attorney-General to choose the smartest applicant even if he thinks that applicant will do a bad job and subvert the entire purpose of the job.
Indeed, it would not be unreasonable for a Republican Attorney-General to hire only Republicans for the civil service. That would be a quick signal of whether the applicant agrees with the Attorney-General’s policies, and agrees enough that he is willing to bear a label that will alienate many of his future colleagues in the civil service. And remember: the Democrats can appoint liberals when voters decide that is what they want instead of Republicans.
The only place where I would start to criticize the Attorney-General— indeed, where I might want a law restricting him— is in appointing his active supporters, straightforward patronage. We wouldn’t want civil service jobs used to reward election workers or campaign contributors, or sold for cash for the Attorney-General’s personal use. Why? If this was required to be public, then the voters could vote against the Attorney-General at the next election, but there are two problems. First, the harm would already be done. The new hires would have permanent civil service jobs despite being neither talented nor in line with the voters’ policy preferences. Second, patronage hiring makes it harder to unseat the incumbent party. They are, in effect, using taxpayer funds to finance their re-election. These new funds may outweigh the loss to them from some voters being outraged.