http://abovethelaw.com/2009/12/anti_fed_soc_bias.php
Discriminating Against Conservatives in Law Firm Hiring:
Is It Wrong? <http://abovethelaw.com/2009/12/anti_fed_soc_bias.php>
Monday, December 7, 2009 1:07 PM - By David Lat
<http://abovethelaw.com/profile/David%20Lat>
No Federalists Need Apply.jpgThat was the question posed in yesterday's
popular Ethicist
<http://topics.nytimes.com/top/features/magazine/columns/the_ethicist/index.html>
column, in the New York Times. Here's the question
<http://www.nytimes.com/2009/12/06/magazine/06FOB-ethicist-t.html?_r=1>
that a reader posed to columnist Randy Cohen:
While interviewing law students for jobs as paid summer interns and
full-time associates for my firm, I noticed several had résumés
listing their activities in the Federalist Society. Some of my
partners have conservative views similar to those of the society,
but I do not. These students' politics would not affect their
professional function, but my review is meant to consider their
judgment and personality (though I don't need to give reasons for
the assessments given). May I recommend not hiring someone solely
because of his or her politics?
NAME WITHHELD, GREENWICH, CONN.
Ah, Greenwich --- limousine liberalism, anyone? We are not surprised
that this question came from the left side of the aisle. In our
experience, liberals --- despite their self-proclaimed commitment to
"tolerance" --- are far more intolerant of people with divergent views.
To liberals, the political is so often personal; if you don't agree with
their entire orthodoxy, you are /per se/ a bad person.
Okay, we're stepping off our soapbox. How did the Ethicist respond?
Find out --- and discover whether the partner took the Ethicist's
advice, plus take a reader poll --- after the jump.
Cohen told the partner that he or she cannot discriminate on ideological
grounds against conservatives:
If candidates can do the job, bathe regularly and work well with
others, you should hire them. As you note, their "politics do not
affect their function." Is it your position that only people who
share your politics should be allowed to make a living? It was
odious when membership in the Federalist Society was all but
required for some jobs in the Justice Department; it is no more
appealing to make that affiliation a bar to employment at your firm.
This strikes us as wise advice. You can read Cohen's complete response
over here
<http://www.nytimes.com/2009/12/06/magazine/06FOB-ethicist-t.html?_r=1>.
So what did the partner end up doing? The column includes this addendum:
"UPDATE: Believing that all the applicants were qualified, but able to
hire only a few, this person recommended rejecting each member of the
Federalist Society."
Oh, liberals --- they're never good at taking direction from
authorities! (We're not surprised; we're guessing the partner, like a
CEO who hires McKinsey consultants, just wanted a rubber stamp for what
he or she was going to do anyway.)
So, readers, what do you think? Take our reader poll below. Before you
do that, just to be fair, we'll give you some counterarguments to Randy
Cohen's position. Here are two interesting comments posted over at the
ABA Journal
<http://www.abajournal.com/news/article/hiring_lawyer_rejects_federalist_society_membersand_columnists_advice/>:
1: When people put irrelevant political credentials on their
resumes, they are trying to bank on them. Concurrently, they are
taking the risk that the result will instead be adverse.
7 (echoing 1): Exactly: The fact of the matter is that, if you are
not trying to bank on a dubious political connection, you will not
be harmed by not referencing it on a resume. The people who put
Federalist Society membership on their resumes are specifically
searching for a place where that will be a plus to their hiring or
their career.
The Bush Justice Department---and Monica G---took the poisonous
trend of political litmus tests where it did not belong (government
service) and have, fortunately, brought it into the disrepute it
deserves. So, if all things being equal, an applicant believes s/he
should prevail in the job market because of such a membership, then
fie on the fool.
At this point we'd like to observe that the Federalist Society is not a
"political" organization, at least not in the narrowest or most
technical sense. As a legal matter, it cannot be; as noted on its
donation page <http://www.fed-soc.org/for_donors/id.38/default.asp>,
"[t]he Federalist Society is classified under I.R.S. Code Section 501
(c)(3) as a charitable and educational foundation."
Although the Society views issues through a conservative or libertarian
lens, as you can see from the About Us <http://www.fed-soc.org/aboutus/>
section of its website, it is not affiliated with either party, and it
does not take political positions. From the Fed Soc FAQ
<http://www.fed-soc.org/aboutus/id.25/default.asp>:
Q. Does the Federalist Society take positions on legal or policy
issues or engage in other forms of political advocacy?
A. No. The Society is about ideas. We do not lobby for legislation,
take policy positions, or sponsor or endorse nominees and candidates
for public service. While overall the Society believes in limited
government, its members are diverse and often hold conflicting views
on a broad range of issues such as tort reform, privacy rights, and
criminal justice.
This is very true. If you've ever attended the Federalist Society's
annual lawyers conference --- a great way to rack up continuing legal
education credits while attending interesting and lively panels, as
opposed to the usual CLE snooze-fests --- you know that the internal
debates on some issues can get quite heated. E.g., gay marriage
<http://abovethelaw.com/2006/11/an_atl_public_service_announce_1.php>.
We suspect there is more ideological diversity within the Federalist
Society, which is marked by the whole "conservative vs. libertarian"
tension, than within the American Constitution Society.
Here's the poll. We realize that the practice area at issue might matter
(as noted by commenter #4
<http://www.abajournal.com/news/article/hiring_lawyer_rejects_federalist_society_membersand_columnists_advice/#comments>
on the ABA Journal post). For purposes of this poll, assume a generic
Biglaw firm with generic litigation and transactional practices.
And note the "Biglaw" qualifier. If you're hiring for a five-person
boutique law firm, it might be more defensible to take into account some
"soft" considerations --- such as personality fit, which might include a
political component --- on the theory that you have to spend all your
time with this person. Cf. the Mrs. Murphy exception
<http://www.fhcsp.com/Laws/> to the Fair Housing Act.
(Or it might not be. Some people feel that the Mrs. Murphy exception
should be repealed
<http://www.faqs.org/abstracts/Social-sciences/Reaching-Mrs-Murphy-a-call-for-repeal-of-the-Mrs-Murphy-exception-to-the-Fair-Housing-Act.html>.)
*_UPDATE_*: And remember that this is for a summer associate or
associate position at a law firm. If you were hiring a gigolo, you'd
pick a conservative, because Republican men are better in bed
<http://www.gq.com/news-politics/mens-lives/200603/republicans-in-bed-best>.
Online Surveys <http://www.vizu.com> & Market Research
<http://answers.vizu.com/market-research.htm>
Taking on Unlikables
<http://www.nytimes.com/2009/12/06/magazine/06FOB-ethicist-t.html> [New
York Times]
Hiring Lawyer Rejects Federalist Society Members---and Columnist's
Advice
<http://www.abajournal.com/news/article/hiring_lawyer_rejects_federalist_society_membersand_columnists_advice/>
[ABA Journal]
(416) Comments
<http://abovethelaw.com/2009/12/anti_fed_soc_bias.php?show=comments#comments>
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