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5. Conspiracy’s Discontents: Prevention and False Positives After September 11
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92 | Centralizing Policy and Patronage John Mitchell and Richard Kleindeinst, were forced to resign due to scandal. Richardson announced that because the legitimacy of the Justice Department is “handicapped by the suspicion of political influence, we cannot afford to have at the head of the Department—or in any of its key positions—a person who is perceived to be an active political partisan.”55 Richardson continued, “A citizen . . . who perceives an Attorney General wearing . . . [a] political hat is scarcely to be blamed for doubting whether . . . [the Attorney General] ever really takes it off.”56 While the independence of the Attorney General is a matter of institutional culture and history, merit-based hiring for less-senior positions is a creature of both history and law. For over 120 years, the federal government has used merit-based criteria to hire candidates for civil service jobs. The premise of this idea, developed in response to the “spoils system” that corrupted federal hiring in the Republic’s first century,57 was to make merit the sole determinant of civil service hiring. Insisting on merit would ensure that federal workers had no partisan ax to grind, but rather focused on doing their job. Before the Pendleton Act of 1883, federal employees usually owed their jobs to patrons in Congress, who expected that their protégés would kick back a portion of their salaries to subsidize the patrons’ political campaigns.58 After the Pendleton Act’s passage, merit-based hiring became increasingly established in tradition, culture, and law. Laws and regulations in place today reflect this concern for removing political criteria from hiring for career positions. Justice Department rules and federal statutes prohibit the use of political criteria to select candidates for all but the most senior “political” positions. The department’s regulations straightforwardly bar discrimination, not merely on the basis of race, religion , disability, sexual orientation, or gender, but also on the basis of “political affiliation.”59 The federal Civil Service Reform Act mandates “fair and equitable treatment” in personnel decisions “without regard to political affiliation .”60 Moreover, in 1974 the Supreme Court decided in Arnett v. Kennedy61 that employees in government had a due process right to a hearing prior to termination. Merit-based hiring does more than restrain the influence of politics and partisanship. More affirmatively, it serves to shape the organizational culture and character of officials at Justice and elsewhere. Forced to hire on the basis of merit, government will look to those who have the initiative, intellect, and judgment to be career attorneys. These attorneys interact with other government officials, including law enforcement agents. They make complex decisions about the scope of federal law, including criminal, environmental, and Centralizing Policy and Patronage | 93 civil rights statutes. By focusing on merit, the government can attract people who can make judgments and forge effective working relationships, without the distractions of partisan politics. Unfortunately, merit-based hiring clashed with the theory of the unitary presidency that drove the Bush administration. Theorists of the unitary presidency argue that the president must have unfettered power to remove federal employees, to shape her administration based on promises to the electorate, and to promptly eliminate incompetence and corruption.62 These theorists often support merit-based hiring, however, believing that it promotes competent personnel management.63 Unitary executive theorists would argue that with merit-based hiring, the executive has no incentive for partisan removals, since replacements will have to be selected on merit. But these thinkers fail to consider the message sent to career appointees when someone is summarily fired. The remaining officials will be chilled in the exercise of their duties, and their judgment will be affected, even if the president has some obligation to hire on merit to replace the official who departs. As a practical matter, the offending official has probably shown independence in taking action against a friend of the administration or declining to act against an adversary. The message conveyed to remaining officials, and to the person hired, is that this is not the way to “get along” in the department. The political tilt was evident in Justice Department hiring from early in Ashcroft’s tenure. Ashcroft repealed a policy that had given career Justice Department employees an opportunity to interview and opine on prospective new hires.64 In the past, various Justice Department divisions, such as civil rights or environmental enforcement, had selected their lawyers, particularly for prestigious programs like the Honors Program. As of 2002, Ashcroft reversed this policy, concentrating...