Alberto Gonzales Aide: Immigration Judges and BIA Members Hired Based on Partisan Political Considerations

The hearings over the fired U.S. Attorneys continued on Wednesday and there were some fireworks.  A former Justice Department official said Deputy Attorney General Paul McNulty was "not fully candid" about the 2006 firings of U.S. attorneys and described an "uncomfortable" conversation with Attorney General Alberto Gonzales about the shake-up. Monica Goodling, a former Gonzales aide and the Justice Department's White House liaison, also acknowledged Wednesday that she screened job applicants based on political ties. Goodling testified before the House Judiciary Committee under a grant of immunity.  Click here for the full CNN report.  Click here for her written testimony (and the carry-over paragraph on pp. 6-7 for the discussion of the appointment of IJs and BIA members.)s

Of particular interest to readers of this blog, Monica Goodling confessed that she used partisan political considerations in hiring Immigration Judges and members of the BIA. She allegedly did so because Kyle Sampson had told her that the Office of Legal Counsel "had provided guidance some years earlier indicating that Immigration Judge appointments were not subject to the civil service rules applicable to other career positions." Marty Lederman on Balkinization (here) writes the following about this part of Goodling's testimony:

[Goodling] acknowledges that she also "took political considerations into account in making recommendations for positions as Immigration Judges and members of the Board of Immigration Appeals, and she thought that was permissible because Kyle Sampson had told her that 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. In late 2006, however, the Civil Division "expressed concerns that the civil service rules might apply" to such immigration judges. This is also an area for further investigation. Did OLC conclude that the civil service laws don't apply to immigration judges? If so, what was the theory? (I'm not aware of any such OLC Opinion; but that doesn't mean there isn't one out there somewhere. Anyone know offhand what the law is on this?) And how did the Civil Division come to express its concerns? On what grounds?

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Lederman poses some interesting questions.  Please post to the comments if you know anything about this area of law.

Given the housecleaning of the BIA by Attorney General John Ashcroft in President Bush's first term, it should not be too surprising that politics went into BIA and IJ appointments.  Nonetheless, it is somewhat surprising that these issues were considered and discussed at the highest levels of the Department of Justice.

P.S.  Marty Lederman writes more on this topic on Balkinization here.

KJ