The Justice Department's inspector general reported this week that officials illegally stacked the decks with conservative attorneys who were sometimes unqualified. Now, some are wondering how to address the fact that people who were hired through a flawed process effectively have tenure.
The report says that Justice officials rejected qualified liberal job applicants and hired conservatives, whether they were qualified or not.
At a Senate Judiciary Committee hearing on Wednesday, Sen. Sheldon Whitehouse (D-R.I.) asked whether Congress could do anything to fix the situation. He suggested removing civil service protections from people who were hired through a flawed process until those people had been through a legitimate hiring process.
"It takes the prize out of the game," Whitehouse said, effectively removing the incentive people might have had to pervert the hiring process.
Addressing this issue requires a balancing act. No one wants a witch hunt, but no one wants political hacks in sensitive jobs, either.
"Once you're in the club, you're in the club," says Paul Light, public service professor at New York University. Light believes that even if Congress could remove civil service protections from some Justice Department employees, it would set a bad precedent.
"The civil service process is designed to protect employees from political interference," Light says. "By stripping civil servants of protections after the fact, you undermine the whole notion of civil service protection."
But Robert Raben, who led the Justice Department's legislative affairs office under President Clinton, says addressing this problem is crucial.
"They've been caught with their hand in the ideological cookie jar," Raben says. "The No. 1 issue here is confidence among the American people that cases are taken in a way that isn't influenced by political ideology."
Raben believes it's not appropriate to fire people just because they were hired through a flawed system, but he says it's "critical" that supervisors watch those people carefully to make sure their legal decisions are not motivated by politics. And he says Congress needs to be more aggressive in its oversight role, to make sure department policy decisions are not undermined by ideologues pursuing their own agendas.
Attorney General Michael Mukasey has adopted a forward-looking approach. He often says hiring decisions and legal judgments will not be motivated by politics, but he has shown no desire to revisit past decisions.
Joshua Berman, who used to work in the department's Public Integrity section, thinks that's the correct approach.
He believes existing performance-evaluation policies are strong enough to address the problem. "To turn a flashlight back on the people who've entered and to re-evaluate their admission into the department would be extremely difficult," Berman says. The system "should over time correct itself," he says, and people who are not qualified for their jobs will eventually leave.
In addition to federal prosecutors, between 20 and 40 immigration judges also earned jobs based on an illegal partisan litmus test, according to the inspector general's report. That's between 10 percent and 20 percent of the total pool of immigration judges.
At Wednesday's congressional hearing, Inspector General Glenn Fine told senators that a few of those judges have already stepped down because they were not up to the job.