I've posted previously on allegations of political bias in the Justice Department, and have argued that we have to be careful with slinging around the term "partisanship" too easily, since the President surely has some latitude, as a normative as well as a legal matter, to direct executive branch agencies to pursue certain priorities and not others. Suppose the President has decided, as a matter of policy and because he believes he has a democratic mandate to do so, to step up enforcement of immigration laws in order to enhance border security. Would there be anything wrong with high-level political appointees -- at central Justice as well as US Attorneys -- directing prosecutors to exercise their discretion to devote more time and resources to immigration enforcement? I don't think so, even if this priority is "political" in the sense that it lines up with the preference of one political party.
Still, there have to be some limits on what the President and his appointees can direct career agency lawyers to do. There are legal prohibitions on taking political affiliation into account in making personnel decisions -- e.g., 5 C.F.R. § 4.2 ("No person employed in the executive branch of the Federal Government who has authority to take or recommend any personnel action . . . shall make any inquiry concerning the race, political affiliation, or religious beliefs of any such employee, eligible, or applicant. . . . No discrimination shall be exercised, threatened, or promised by any person in the executive branch of the Federal Government against or in favor of any . . . applicant for a position in the competitive service because of his race, political affiliation, or religious beliefs, except as may be authorized or required by law). But what are the normative limitations?
According to an article in the Washington Post (hat tip to TPM Muckraker) the DOJ Inspector General, Glen Fine, is expected to release today a report detailing political bias in the administration of the DOJ's prestigious honors program. While we don't yet have the full report, the WaPo summary indicates that applicants were rejected for honors program positions because of affiliations with liberal interest groups or clerkships with Democratic judges. So, what's wrong with that?
Leaving aside the DOJ regs for the moment (I don't know whether it would be discrimination on the basis of "political affiliation" to refuse to hire someone who had clerked for, say, Judge Reinhardt on the Ninth Circuit), are there not considerations of efficiency and commitment to the mission of the agency that would justify hiring lawyers who share the President's priorities? Private employers exercise this kind of judgment all the time. In fact, law students are advised not to talk too much about pro bono opportunities, lest employers get the idea that they're not deeply committed to spending 2700 hours a year on M&A or hedge fund matters. Employers understandably want employees who get behind the mission of the organization.
To this one frequently hears the argument that government is different -- lawyers for the government should be neutral, non-partisan, impartial. But do we really believe that? Most government policies are normatively non-neutral. Is anyone surprised that the Bush administration was less vigorous in enforcing environmental, civil rights, and firearms laws that a Gore or Kerry administration would have been? This raises the obvious response to the "neutrality" argument, which is that the President's enforcement-priority decisions are legitimate because they are traceable to a democratic mandate. (Yes, I know it's a bit of a stretch to call a 50.1% margin of victory a "mandate," and I'm not about to get into a debate on the 2000 election and Bush v. Gore, but these are details -- the point is, the President can claim democratic legitimacy for these decisions; whether he can make good on that claim is another matter.)
I think the key normative idea regarding government lawyers is not that they work for the government, but that they are lawyers. Emphasizing the "lawyers" bit underscores the presence of another ideal, as a counterpoint to democratic legitimacy -- namely, the rule of law. Democracy isn't just majority-rules; it's also government by laws. Lawyers are not merely government officials; they are government officials with a particular responsibility of fidelity to the law. While the President is entitled to make non-neutral enforcement priority decisions, it is the job of lawyers to ensure that the President's agenda is carried out within the limits of the law.
I'm not sure how this is going to play out in the context of the Honors Program hiring. We'll have to wait for the Inspector General's report. But as we start to see more results from the investigations of the Alberto Gonzales-era scandals at the DOJ, we will probably continue to see more tension between the ideals of democratic process legitimacy and the rule of law.