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Judge rejects lawsuit over DOJ politicized hiring

By Bill Mears, CNN Supreme Court Producer
updated 12:44 PM EST, Fri December 16, 2011
STORY HIGHLIGHTS
  • The lawsuit alleged bias against liberal candidates for an honors program
  • The judge says misconduct occurred, but not enough to uphold the lawsuit
  • Three lawyers sued over their rejection to the honors program

Washington (CNN) -- A federal judge has tossed out a lawsuit alleging conservative political ideology drove a prestigious, selective Justice Department hiring program during the administration of President George W. Bush.

The ruling Thursday was a setback for three lawyers rejected for the Honors Program that funneled promising young lawyers into government jobs. They had sued alleging misconduct by Bush political appointees who did the hiring, and violations of the Privacy Act.

U.S. District Court Judge John Bates called the behavior a "dark chapter" for the Justice Department, but he concluded that while the actions of some officials were inappropriate, the lawsuit could not go forward.

"This case reflects extremely disturbing behavior from high-ranking Department of Justice officials. This court, and others, have often condemned that conduct. Even so, plaintiffs have not met their burden to prevail on the Privacy Act claims presented in this case," Bates said.

Adding that he agreed with the plaintiffs "that misconduct from senior government officials should not be condoned," Bates said "nonetheless, as much as the court might disapprove of certain conduct, the evidence before the court must be objectively analyzed under the law."

The lawsuit followed the department's own internal investigation that slammed two of three members of the screening committee, finding they blocked liberals and people with Democratic Party ties from being accepted into the Honors Program and Summer Intern Law Program.

Law clerks and law students typically apply for such highly competitive positions.

Esther Slater McDonald, a Bush political appointee at the Justice Department, "wrote disparaging statements about the candidates' liberal and Democratic Party affiliations on the applications she reviewed and ... she voted to deselect candidates on that basis," said the report by Inspector General Glenn Fine, who has since left the department.

Fine's report, the first official investigation to document politicization of the Justice Department during the Bush administration, was an offshoot of the larger investigation of Justice Department politics triggered by the furor over the firing of nine U.S. attorneys.

McDonald and Michael Elston, the chief of staff to former Deputy Attorney General Paul McNulty, were cited for engaging in misconduct, an administrative violation. The third member of the screening committee, career lawyer Dan Fridman, was cleared of any involvement in the politicization of the process.

As a result of the controversy, the hiring process was changed in 2007 to insulate hiring decisions from political considerations. Both Justice Department policy and federal law prohibit discrimination in hiring for career positions on the basis of political affiliations.

The subsequent lawsuit alleged department lawyers searched the Internet for information about applicants' personal and political backgrounds, and using that to make hiring decisions, including to reject one applicant who had run as a Green Party candidate.

Many of the related documents from the hiring program have since been destroyed, which lawyers for three of the rejected appointees say violates federal law.

Former Attorney General Alberto Gonzales said in a deposition last year he was "disappointed I didn't do things differently" to end the politicization of hiring practices.

The case is Gerlich v. U.S. Department of Justice (cv-08-1134)

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