As noted here, the Inspector General of the Department of Justice has found that political and ideological affiliation played in role in determining which applicants would be admitted to the Department’s honors program in two years during the Bush administration. Now one of the rejected applicants, Sean Gerlich, has filed a lawsuit against DOJ.
Basing hiring decisions for the positions at issue on politics and/or ideology is improper and illegal. Thus, there is certainly nothing objectionable about filing a lawsuit, provided the plaintiff has a basis for believing, in good faith, that he was victimized by this practice. Here, according to the Washington Post, the plaintiff says he “suspects” that he “may have been rejected” because he had worked as a volunteer for Amnesty International and for a Democrat running in a state congressional race.
Proving causation and damages may not be easy. As I understand it, the discrimination occurred in the striking of applicants, due to budgetary constraints, from a list of highly qualified candidates who had been passed along by various branches at DOJ. If so, the plaintiff will have to show not just that he was well qualified but that he was so well qualified that, absent political considerations, he would have remained on the hire list at the expense of some other very well qualified but less liberal candidate. And as to damages, I would imagine that an applicant well qualified enough to prove his case could have found (and probably did find) a position that paid at least as well as DOJ. Any damages stemming from not having the DOJ gig on the resume are highly speculative.
On the other hand, this is probably a case that DOJ will be anxious to settle. This will be true regardless of how the election turns out. For example, as much as an Obama Justice Department might want to see the Bush Justice Department embarrassed in litigation, I have difficulty imagining it trying to defend discrimination against Democrats. The more attractive course would probably be to pay off whichever of the new Attorney General’s ideological allies bring suit.
Gerlich maintains, however, that he’s “not actually especially liberal, particularly as regards antitrust law, the area in which I applied.” This may well the case, though experience has taught me to grab my wallet, so to speak, when I hear someone say he’s “not especially liberal.”
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