From Brooks Brother Rioter to Judge

Monica Goodling says she was given the green light to hire immigration judges based on their political qualifications. So how’d that happen? And who’s been getting the gig?

As a story in The Legal Times last year explained, immigration judges are different from other federal judges in that they’re civil service employees — meaning that there’s a formal application process with the Justice Department’s Executive Office of Immigration Review.

But, Jason McLure reported, “according to an immigration-judge hiring policy released by the Justice Department, the attorney general also has the option to pre-empt the formal vetting process and directly hire a judge of his choosing.”

It was apparently this option that allowed Goodling, and others at the department before her, to do their thing.

So who’s been getting the gig? The Times last year profiled one of those judges, Garry Malphrus.

A former Republican aide on the Senate Judiciary Committee, Malphrus also worked on the White House’s Domestic Policy Council before becoming a judge. But he really showed his stripes in 2000, when Malphrus joined other Republicans in making a ruckus (chanting, pounding on windows and doors) outside the Miami-Dade Elections Department — the so-called “Brooks Brothers Riot” — during the Bush-Gore recount.

Malphrus, of course, had no immigration experience when he got the job, McLure reports. He had that in common with a number of his peers, who had similar backgrounds:

Among the 19 immigration judges hired since 2004: Francis Cramer, the former campaign treasurer for New Hampshire Sen. Judd Gregg; James Nugent, the former vice chairman of the Louisiana Republican Party; and Chris Brisack, a former Republican Party county chairman from Texas who had served on the state library commission under then-Gov. George W. Bush.

But why bother becoming an immigration judge? Well, the salary isn’t bad ($113,904 in 2006) and “unlike his former colleagues at the White House, as a career civil service employee, Malphrus won’t be out of work should Republicans lose the White House in 2008.” And as a friend of Malphrus tells McLure, “I think he’s just working his way up the totem pole.”

Now, here’s the thing. Malphrus and all the others cited in McLure’s piece were appointed before Goodling became White House liaison in April, 2005.

And here’s what Goodling said in her written testimony yesterday:

Around the time I became White House Liaison in April 2005, Mr. Sampson told me that the Office of Legal Counsel (OLC) had provided guidance some years earlier indicating that Immigration Judge appointments were not subject to the civil service rules applicable to other career positions.

“Some years earlier.” So this had been going on since early in the Bush administration.

The Justice Department, caught red-handed, has tried to hit back after Goodling’s testimony, claiming that there never was such an Office of Legal Counsel opinion.

To that, Goodling’s lawyer issued a reply* today, saying in a press release:

“Ms. Goodling is aware of the fact that the Office of Legal Counsel never issued a formal opinion on the matter, and she did not suggest otherwise in her testimony before the House Judiciary Committee. Around the time Ms. Goodling became White House liaison in April 2005, Mr. Kyle Sampson told her that Acting Assistant Attorney General Daniel Levin had advised that Immigration Judgeships were not subject to the civil service rules applicable to other career positions. Ms. Goodling testified consistently with these facts before the House Judiciary Committee.”

In other words, this was something that came from the top — which helps explain why the Justice Department has been hitting back so aggressively against Goodling, who it turns out, actually had very little to do with what looks like a long-standing policy under Bush.

*Update: Dowd’s complete reply today:

Today, Department of Justice spokesman Dean Boyd stated that the Department. had “located no record of an Office of Legal Counsel opinion advising that Immigration Judges may be appointed on the basis of political considerations or that civil service laws do not apply to such appointments.”

Ms. Goodling is aware of the fact that the Office of Legal Counsel never issued a formal opinion on the matter, and she did not suggest otherwise in her testimony before the House Judiciary Committee. Around the time Ms. Goodling became White House liaison in April 2005, Mr. Kyle Sampson told her that Acting Assistant Attorney General Daniel Levin had advised that Immigration Judgeships were not subject to the civil service rules applicable to other career positions. Ms. Goodling testified consistently with these facts before the House Judiciary Committee.

In her written remarks, Ms. Goodling testified:

Around the time I became White House Liaison in April 2005, Mr. Sampson told me that the Office of Legal Counsel (OLC) had provided guidance some years earlier indicating that Immigration Judge appointments were not subject to the civil service rules applicable to other career positions.

This testimony is truthful and accurate.

In response to questions from Representative Nadler, Ms. Goodling stated:

I was informed that the Office of Legal Counsel had said that because those were positions under a direct appointment authority of the Attorney General, that we could consider other factors in those cases. Later, concerns were raised as a result of some litigation and the Civil Division came to a different conclusion. As a result of that, we actually froze hiring late in December of last year.

This testimony is truthful and accurate.

In response to questions from Representative Goodlatte, Ms. Goodling stated:

In other cases like immigration judges and Board of Immigration appeals, I thought that we could consider other factors because I had been told that, in relation to immigration judges — and I think my assumption was that that applied to the BIA as well.

This testimony is truthful and accurate.

Finally, in response to questions from Representative Sherman, Ms. Goodling stated:

If you’re asking about other categories like immigration judges or BIA members, originally, I was told that we could, particularly in relation to the immigration judges. And I assumed it applied to BIA positions as well. I was told that those factors could be considered.

This testimony is truthful and accurate.