How Immigration Judge Spots Went Political — and Went Back

Last week, Monica Goodling revealed that she’d routinely placed Republicans in civil service spots, including immigration judge positions. As she was eventually forced to concede under hard questioning, doing that was against the law.

But it also became apparent that the practice was nothing new — and that it dated at least back to 2004, before Goodling got involved. That’s how people like Garry Malphrus, a former Brooks Brother rioter with no immigration experience, became a judge.

Today The Legal Times fills in the blanks. And as Jason McLure and Emma Schwartz plainly put it, “As with the replacement of U.S. attorneys, political appointees at the Justice Department appear to have trod upon department norms — and may have even broken federal law — to reward their own people with plum assignments.”

The slide began during John Ashcroft’s tenure, they report, when Ashcroft’s aides got the idea. They went to the Office of Legal Counsel, the Department’s internal legal advisor, for the go-ahead. And they got it.

That process of consultation, however, seems to have been oddly casual for such a shift in policy. According to a statement by Monica Goodling’s lawyer, Kyle Sampson got an oral opinion from the then-head of the OLC that it was legal.

Marty Lederman, who worked in the Office of Legal Counsel under Clinton, told me that oral advice is given “all the time” at the OLC, but that it’s “very unusual” to not issue a written opinion if the result is a “significant change in well-established practices,” as this hiring change certainly was.

That oral opinion provided the basis for two years of political hiring, resulting in the appointment of perhaps dozens of unexperienced, political loyalists. That came to a stop, Legal Times reports, as the result of a hiring discrimination lawsuit by a 25-year veteran of Immigration and Customs Enforcement office in El Paso. After being repeatedly passed over for a judgeship by less qualified white men, Guadalupe Gonzalez sued.

After it became clear Gonzalez’s suit wouldn’t go away, the Justice Department reconsidered, finally resulting in a hiring freeze this past December. As of April, the judgeships are open to competition again and out of the hands of the attorney general’s underlings.

It’s a reversal reminiscent of the Justice Department’s decision last month to revert back to the old way of hiring entry-level lawyers. After an anonymous group of Department employees accused Michael Elston, the deputy attorney general’s chief of staff, of rejecting applicants with liberal backgrounds, the Department announced that it was returning the hiring process to the career employees who had been in charge until a 2002 policy change.

So it’s not the first time — and probably not the last — that the political leadership at the Justice Department has gotten its hand caught in the cookie jar. And for that, you can credit the scrutiny on the department as a result of the U.S. attorney firings.