Article — From the March 2008 issue
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Article — From the March 2008 issue
Subverting an entire legal apparatus requires great effort. Laws must be circumvented, civil servants thwarted, and opposing politicians intimidated into silence. With an election redecided in the courts, though, the Bush team was quick to lock in its gains.
The first step was to establish a bureaucracy more in tune with the new approach. Setting the proper tone would not be simple, though. Justice had long been seen as a prize for loyal movement conservatives as well as for the religious right, and both groups expected the department to be run by ideological warriors willing to risk power in the pursuit of specific policy goals. Key Bush aides wanted Montana’s moderate governor, Mark Racicot, for the top job at Justice, but movement conservatives objected and pushed through their own candidate—former Senator John Ashcroft, an ostentatiously devout evangelical Christian.
Ashcroft eventually would be replaced by Alberto Gonzales, a notably pure specimen of partisanship, but in the meantime the administration faced an even more significant obstacle, which was that installing partisans in career positions is illegal. After a long struggle over a political spoils system that flooded Washington with partisan hacks, Congress passed the Pendleton Civil Service Reform Act of 1883, which generally required that civil servants be hired on the strength of their professional qualifications and without regard to their party affiliation or political beliefs. And it strengthened that law considerably in 1939, when it passed the Hatch Act, which restricted the involvement of civil servants in partisan political campaigns.
The Bush Justice Department labored to get around these laws in various ways. The Honors Program and Summer Law Intern Program at Justice, for instance, has long served as a fast track for students from elite law schools. Under the Bush Administration, however, the hiring shifted from the Ivies to avowedly conservative schools. Regent University Law School, founded by Pat Robertson in 1986, claims to have placed more than 150 of its graduates in positions with the Bush Administration. Regent, which ranks among the bottom tier of law schools, struggled to secure an accreditation with the American Bar Association, just as its alumni struggle to find employment. Hiring from fourth-rate schools is perfectly legal, of course, and the practice has the additional benefit of creating a new class of grateful civil servants.
There were less subtle methods as well. Among the loyal young conservatives at Justice was one Monica Goodling, who received her law degree from Regent in 1999, spent 2000 doing opposition research for the Republican National Committee, and was appointed to Justice in 2001. By 2006 she had risen to become a White House liaison working directly out of the office of Alberto Gonzales. For much of her tenure, Goodling had a major hiring role at the Justice Department. Her approach was blunt. The New York Times reports that Robin Ashton, a “seasoned criminal prosecutor at the Department of Justice,” learned from her boss that she was being passed over for a promised promotion because she had what her boss called “a Monica problem.” The problem was that she “believes you’re a Democrat and doesn’t feel you can be trusted.” Jack Goldsmith, a conservative law professor who became head of the Office of Legal Counsel in 2003, recalled his own interview with a Goodling colleague in his 2007 book about the Bush Administration. He reports that he was asked immediately why he had made an $800 campaign contribution to a law-school colleague who was a Democrat, and that he was also asked, point-blank, “Are you a Republican?” (He was.)
In congressional hearings held last May to investigate Justice Department hiring practices, Goodling cited her Fifth Amendment right not to incriminate herself. Under a grant of limited immunity, however, she acknowledged that she “may have gone too far in asking political questions of applicants for career positions” and that she “may have taken inappropriate political considerations into account on some occasions.”
Goodling resigned from the Justice Department shortly thereafter, but her hires remain. By 2006, the New York Times reported, Alberto Gonzales had delegated to Goodling and his former chief of staff, Kyle Sampson, “the power to appoint or fire all department political appointees other than the United States attorneys.” As we will see, the “Monica problem” would come to vex the selection even of U.S. attorneys. But for the moment it is important to note only that career civil servants were being replaced with hacks who would put loyalty to Bush well above the traditional functions of the Justice Department.
Scott Horton , an attorney in New York City, writes the daily weblog No Comment for Harpers.org. His last article for Harper’s Magazine, “State of Exception,” appeared in the July 2007 issue.
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No Comment — April 12, 2013, 11:11 am