I've posted on the US Attorney firing controversy, and was hoping to avoid posting anything else, but a recent article in the NY Times got my attention. The article describes how a 31 year-old, relatively inexperienced political operative named Monica Goodling was appointed to the executive office of the attorney general, charged with supervising U.S. Attorneys and DOJ lawyers. She allegedly screened job applicants aggressively for ideological bona fides, looking for evidence of liberal leanings. There has been a great deal of commentary on the U.S. Attorney case in general, and Goodling's role in particular, but I still don't think anyone has explained satisfactorily what exactly is wrong with hiring politically like-minded lawyers to work in the Justice Department, or firing lawyers who disagree with the priorities set by the Attorney General. (Orin Kerr's commentary at Volokh Conspiracy -- see, e.g. here; Marty Lederman's and Brian Tamanaha's posts at Balkinization -- see, e.g. here and here; and the continuing coverage at Talking Points Memo are all excellent.)
So here is a challenge for LEF readers: Without using question-begging terms like "politicizing," "partisanship," "bias," or "corruption," how do we define the nature of the wrongdoing engaged in by Goodling, Kyle Sampson, Bradley Schlozman, Michael Elston, and other DOJ lawyers, including Attorney General Alberto Gonzales himself? As an additional challenge, let's avoid defining it in terms of legal wrongdoing, such as violating the Hatch Act or Justice Department regulations -- I'm looking for a purely normative definition, in terms of the function or role of the Justice Department, or in terms of some theory about the relationship between government lawyers and the law. The tricky part, of course, is that the answer has to respect both the need for democratic accountability (which presumably gives the President and Attorney General some latitude to set enforcement priorities) and some degree of independence from purely political -- oops, there's one of those question-begging terms! -- pressures and influence.
(More below the fold.)
My rough cut at answering this question is that we're looking for an account of excluded reasons -- that is, considerations that cannot legitimately serve as the grounds for a hiring or firing decision. The relevant bad act is making decisions on the basis of excluded reasons. In political philosophy, liberal theorists often make a similar point using the concept of neutrality. The principle of neutrality means that government actors are sometimes prohibited from basing decisions on reasons that would be adequate to justify a decision in the private domain. Government should be neutral as between competing ideals of the good life or, as Rawls calls them, comprehensive doctrines. Applying the principle of liberal neutrality to the DOJ case, the argument would be that government actors impermissibly considered ideals that private citizens may take into account when, for example, deciding how to vote.
Although it's tempting to fall back on the principle of liberal neutrality, I think it's futile to expect concepts like neutrality or impartiality to do all the work, because the principle of neutrality is overbroad (or at least is capable of being misunderstood as being too broad). What I mean is that government agencies take positions all the time that are not neutral between competing ideals of the good. If the Environmental Protection Agency decides to regulate carbon emissions, if the SEC decides to require stock options to be treated as expenses, if the Justice Department approves certain investigation techniques (like warrantless wiretapping) despite concerns about civil liberties, or if the Civil Rights Division of the Justice Department pursues some allegations of discrimination but not others, these decisions are not impartial. They take sides, and in particular they take sides as between highly controversial moral and political ideals. If the Justice Department decides to intervene, or not to intervene, in a private lawsuit challenging a state's consideration of race-conscious criteria in higher education, either way the government takes sides in a debate about the meaning of equality, the continuing significance of race in our society, the way public resources should be allocated, the value and importance of diversity, and so on.
As the recent controversy shows, these competing ideals of the good tend to overlap with the positions of the two major political parties. Defenders of A.G. Gonzales have noted that no one should be surprised if the Bush Administration's enforcement priorities differed from those of the Clinton Administration. This administration isn't as concerned about enforcing environmental laws, would prefer to prosecute illegal immigration rather than gun crimes, and takes a very different view of what constitutes racial discrimination in government action (i.e. tending to take much more seriously the idea of "reverse discrimination" against whites). So what? Isn't it the prerogative of the administration to realign the mission of executive branch agencies to comport with the electoral mandate?
Yes and no. I will suggest two ways of defending the conclusion that various DOJ lawyers have engaged in serious wrongdoing. The first is conceptual or jurisprudential; the second is more practical.
(1) On the jurisprudential level, talking about neutrality or the rule of law tends to remind people of the old law vs. politics distinction. Many, many commentators have said, in essence, "I thought that distinction was dead, and those of us who are not hopelessly naive now all believe that all law is politics." Well, I for one think there is a difference, but that does not have to mean that there is only one right answer to any given legal question. (I'm also not a "formalist" in the sense that I think legal reasoning is a process of purely logical deduction.) Existing law does not determine one unique answer to legal questions, but it does map out a field of sorts, which can be arranged in zones of decreasing plausibility of interpretations. In most fields, with respect to many questions one may have occasion to ask, there is a heartland of meaning that any competent, impartial observer would agree captures the content of existing law pretty well. Then there is a zone of arguable meaning, which competent, impartial observers would agree might represent the content of the law -- as lawyers think about litigation positions, these are arguments that have a chance of success, but are by no means slam dunks. Then there is the zone of colorable or barely non-frivolous arguments, which might not subject a lawyer to sanctions under Rule 11, but do not have much likelihood of prevailing. (In other words, if this is the best a lawyer can do, she ought to advise her client to settle.)
Lawyers working for the government have an obligation to faithfully execute the law, but all lawyers have an obligation to treat the law with respect and interpret it in good faith. This does not mean that lawyers cannot argue for novel positions, as long as there is (in the words of FRCP 11) a good faith argument for the extension, modification, or reversal of existing law, or the creation of new law. As applied to the U.S. Attorney controversy, I would be willing to permit political appointees in the Justice Department to take legal positions that are adequately warranted by existing law, or to urge changes in law (as long as there is a good faith argument, blah blah blah), and to make hiring decisions with these legal positions in mind. That would be permissible even if those positions tended to coincide with the political platform of the president's party. (This is why I think words like "partisan" are question-begging.) However, as a legal position gets farther from the heartland of clearly permissible interpretations of existing law, it is important that these positions be carefully scrutinized. Here is where various institutional checking procedures, such as congressional oversight, intra-agency watchdog offices, and a free and vigorous press are essential to ensuring that power is not abused. In my view, many recent legal ethics scandals (Enron, the torture memos, tax shelter abuses) have involved lawyers operating within the zone of barely colorable, or outright disingenuous legal interpretation. Although any lawyer acting alone might come to believe that an interpretation of law is actually sounder than it is, this is less likely when the process of legal analysis and advising is open and transparent.
(2) If law and politics tend to blend together, so that it become appropriate for a government lawyer to a legally supported that happens to coincide with the policy preferences of a political party, then are there ever going to be cases of wrongdoing (call it politicization, or whatever)? The argument in (1) is that we can define this wrongdoing by seeing whether a position taken by government lawyers is legally supportable, but what about policy or enforcement decisions, which are inherently discretionary and not much constrained by existing law? For example, prosecutorial discretion is a familiar phenomenon, so why can't A.G. Gonzales simply defend the firing of all 8 (or 9 or 10) U.S. Attorneys, and the hiring decisions of his subordinates, on the basis of prosecutorial discretion writ large? The answer is that there are constraints on the exercise of prosecutorial discretion, but they turn out to be as hard to define as the terms we started out with. The exercise of prosecutorial discretion must not turn on improper motives, but how can we define "improper"? Here, I suggest, the best we may be able to do is use common sense proxies for improper motivation, such as Bradley Schlozman's alleged advice to one applicant to take Federalist Society references off his resume so his hiring didn't "look political," or the use of political litmus tests in ways that are clearly not germane to the mission of the government agency. (An extreme, and notorious, example of non-mission-germane ideological screening is the selection by L. Paul Bremer of applicants for jobs with the Coalition Provisional Authority in Iraq based, in part, on their views about Roe v. Wade.) At the risk of sounding elitist, I would also suggest that turning down summa cum laude graduates of Harvard Law School (and yes, I know, everyone graduates summa at Harvard) in favor of graduates in the middle of their class at considerably lower-ranked, but considerably more reliably conservative law schools might be evidence of improper motivation.
In the absence of this sort of evidence, however, I don't think it is necessarily improper to select government lawyers in part on the basis of agreeing, in political terms, with the administration's positions. As between two equally well credentialed applicants -- one of whom was a member of the Federalist Society, the other a member of the American Constitutional Society -- of course the DOJ under this administration is going to take the former. And that's okay, because the sorts of enforcement decisions made by the Justice Department are supposed to be responsive to the will of the electorate. At the same time, however, government lawyers are supposed to retain some degree of independence, but I think guaranteeing that independence is largely the role of the law. Lawyers who faithfully interpret and apply the law are independent of politics in the pernicious sense. The danger lies in areas of broad, unreviewable, unregulated discretion -- and there are many of those. In those dangerous areas, the best way to control abuses of power is to rely on structural checks such as transparency and oversight. Still, the object of oversight is not to ensure that lawyers are not influenced by politics, but that their actions are guided by respect for the law and legal values. To the extent political positions are embodied in the law, lawyers can be permissibly political.