Washington Post Editorial: Bias in High Places

Bias in High Places: The Justice Department had a litmus test.
EDITORIAL - The Washington Post - Sunday, June 29, 2008; B06

NOWHERE IS the need for impartial, nonpartisan decision-making more important than at the Justice Department. Charged with enforcing the nation's criminal and civil laws, lawyers in the department must be trusted to apply those laws evenly and without favor. That is one reason the department's policies insist that political affiliation play no role in the hiring of career attorneys. These policies, however, were systematically shredded by some in the Bush administration's Justice Department.

A recently released report by the Justice Department's Office of Inspector General and Office of Professional Responsibility confirmed that in 2002 under Attorney General John D. Ashcroft and again in 2006 under Attorney General Alberto R. Gonzales applicants for entry-level positions through the department's honors and summer internship programs were weeded out based on their perceived liberal leanings. The report is one in a series that examines the alleged politicization of the department during the Bush administration. The report focuses much attention on the infractions of two political appointees -- Esther Slater McDonald, then counsel to the associate attorney general, and Michael J. Elston, then chief of staff to Deputy Attorney General Paul J. McNulty. Before 2002, the vetting process for candidates for these programs was handled primarily by career Justice Department employees. In 2006 Mr. Elston was chair of the three-member committee that screened applications for both programs; Ms. McDonald was a member, as was career prosecutor Daniel Fridman, who is praised in the report for reporting violations by Mr. Elston and Ms. McDonald.

How did these two sniff out political proclivities? According to the report, Ms. McDonald searched candidates' applications for " 'leftist commentary and buzzwords' such as 'environmental justice,' 'social justice,' 'making policy,' or 'anything else that involves legislating rather than enforcing' "; she also apparently punished membership in liberal organizations. The report faults Mr. Elston for failing to stop Ms. McDonald's breaches and at times for using political markers to disqualify candidates on his own. The report concludes that both violated Justice Department policy and civil laws, but because they have left the department they can no longer be sanctioned for policy violations, and the department apparently has no standing to bring civil suits for the alleged legal violations. It would be wrong to assume that the Justice Department is now overrun with conservative zealots; most components hire only a handful of entry-level lawyers each year. Attorney General Michael B. Mukasey should be commended for condemning the use of politics in career hiring decisions and revising the selection process to ensure more neutral, merit-based assessments. It is disgraceful that his predecessors did not understand the damage they were doing.