Tainted Justice

‘The foundation of justice is good faith.” So wrote Cicero, the great Roman philosopher. It now appears that the Bush administration chose to ignore this and to instead uproot the foundation of justice, and in particular the foundation of the U.S. Department of Justice, with its traditional grounding in fairness and nonpartisanship under the rule of law.

In a report issued this week, the department’s inspector general concluded that John Ashcroft and Alberto Gonzales, while serving as attorney general, allowed for “screening committees” that illegally used ideological rather than purely merit-based factors in the selection and rejection of applicants for career positions in the department’s elite honors program.

The report found that in 2002 and again in 2006, these screening committees purposely politicized the hiring process for nonpartisan jobs at the Justice Department by “de-selecting” a disproportionate number of “seemingly qualified” applicants because of their perceived liberal or Democratic Party sympathies. In 2006, for instance, the report found that candidates whose applications betrayed “liberal affiliations” were de-selected at more than three times the rate of those who seemed conservative.

Additionally, graduates from the nation’s most competitive law schools were rejected for honors program positions based on their membership in the liberal-leaning American Constitution Society. At the same time, applicants with lesser credentials who were associated with the rightward-tilting Federalist Society were more likely to be hired than de-selected, according to the report.

In other words, under President Bush’s cronies at the Justice Department, a deliberate effort was made to reposition to the hard-rudder right the core of career-level government counsel. That sucking sound you hear is the submersion of good faith in the administration of justice into the mud of prohibited political dogma.

Justice Department decisions on the hiring of honors program and other career legal jobs are supposed to be governed by Title 28, Section 42.1(a) of the U.S. Code of Federal Regulations, which says that “political affiliation” (along with race, religion, sexual orientation and other factors) should have no place in employment decisions at the department. The Civil Service Reform Act also specifically “prohibits the department from discrimination in hiring for career positions based on political affiliation.”

The bad faith shown by the illegally contaminated hiring policies of the Bush-Ashcroft-Gonzales administration at the Justice Department has corrupted the credibility of the department as the nation’s law firm. It is charged with representing the American people and their government without fear or favor. Now, however, every criminal investigation and prosecution, every civil suit, every regulatory action and every piece of advice to other federal government bodies may well be subject to second-guessing because of the political pollution that has poisoned the pool of professional lawyers who conduct the day-to-day legal work at the department.

Not since Watergate and the reign of Republican Atty. Gen. (and later federal felon and prisoner) John Mitchell has the integrity of the Department of Justice been placed in such jeopardy. For those men and women of quality and character who have been hired on their merits and who have struggled through the thicket placed in the way of doing their duty as America’s attorneys, these must be times that truly try their souls.

I admit to a personal interest in this issue. In 1979, following a clerkship with a liberal federal appeals court judge who had been appointed to the bench by a Republican president, Gerald Ford, I was hired as an attorney in the Justice Department’s honors program. For 11 years, as a career prosecutor and supervisor with the department’s criminal division, I conducted business without serious partisan interference.

Although I was a registered Democrat and a liberal, my politics were never discussed on the job and were never a consideration by me or my bosses (many of them appointed by Republican presidents) in regard to the investigating, filing, trying and appealing of cases. Under the Reagan administration, I was even given the privilege of screening applications for the honors program. In deliberating with other screeners, I never once heard expressions of partisan interests in the assessment of applicants.

The principle I was taught as a Justice Department attorney -- that professionally appointed, nonpartisan government counsel should park their political prejudices on the street and not bring them as unwanted baggage into the corridors of power -- served me well as a prosecutor and later as a federal judge (appointed by a Republican president, George H.W. Bush). The disdain for that principle shown by the current President Bush and his attorneys general makes me fear for the future of a Department of Justice that to me embodied public service at its best.

Bruce J. Einhorn, a retired federal judge, is a law professor at Pepperdine University and a member of the American Constitution Society.