Politics in Law Firm and Law School Hiring: Time for some Tit for Tat?

The following question was posed to the NY Times' resident ethics expert:

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?

The Times' Randy Cohen responded:

You may not. 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.

I am tempted to believe that those whose politics differ from mine lack “judgment and personality” and taste in clothes and finesse on the dance floor. But this proposition is unsupportable. As to judgment: politics is famously a subject about which honorable people differ. As to personality — whatever that means — even in an era when radio blowhards fulminate and Tea Party crackpots threaten violence against their political foes, it is possible to disagree with civility. You must abandon your mini-McCarthyism and cease denying employment to those you deem politically misguided.

Unfortunately, Cohen reports that:

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.

This episode will come as no surprise to those who believe that prejudice against conservatives is far more rampant in law firm and law school faculty hiring than any other form of discrimination. (My own view, FWIW, is that such bias is rampant but that the underrepresentation of conservatives is also due to other non-bias factors, such as network effects, as well. )

Some commentators at places like the ABA Journal and Above the Law have no problem with taking political identification into account in hiring decisions.

I have the misfortune of being on the appointments committee here at UCLA.  Assume I have been frustrated by our lack of ideological diversity for a long time and am concerned that this year is shaping up as another year in which only left-liberals need have bothered to apply. (Actually, UCLA is a pretty pleasant place for conservatives to work. Although it would be nice if more of them got to enjoy the pleasures of this place.) So suppose this story was the straw that broke the camel's back. Suppose I decided it was time for some tit for tat. Every time somebody with the Federalist Society on their resume gets voted down, I vote down a member of the American Constitution Society.

How'd you like them apples, Mr. Hiring Partner? After all, sauce for the goose is sauce for the gander, right?

No. Two wrongs do not make a right.

In fact, I can think of nothing more corrosive for intra-organizational relations than putting one's personal ideological preferences ahead of making decisions that are in the best interest of the organization. Indeed, making decisions like hiring based on anything other than the merits is a breach of that duty of good faith and loyalty that members of an organization owe to it and their fellow members. As Justice Cardozo observed of fiduciaries in Meinhard v. Salmon, "thought of self is to be renounced."

Trust among members of an organization like a law firm or a law school faulty is essential. It acts as a lubricant that reduces social friction and thereby reduces the transaction costs associated with making group decisions.

Once a member starts putting his or her own biases ahead of the interests of the group, trust goes out the window. Conflict becomes more likely, Effort and costs are expended in monitoring one another. Consensus becomes harder to achieve.

Granted, there is some theoretical evidence that tit for tat is an effective strategy in certain game theory situations. In the real world, however, tit for tat often leads to a death spiral of retaliation. I would much prefer to live in an organization in which social norms promote turning the other cheek rather than retaliation. After all, the Golden Rule asks us to do onto others as we would have them do unto us, not to do as they have done to us. Love for neighbor is not premised on self-interest. Which is precisely why I don't play tit for tat in hiring and precisely why Mr. Hiring Partner's conduct was wrong.

The tough question is how an organization ought to respond to the breach of trust by someone like Mr. Hiring Partner. Naming and shaming? Expulsion? Monitoring?

HT: Paul Caron.

Comments

[joeindc44]

What clueless dicks these hate-filled lefties are.

Incidentally, I like the NYT's rote accusation of "Tea Party crackpots threaten violence against their political foes," you know except for the union thugs who have actually put tea-party participants in the hospital. It seems that the NYT's is becoming less and less a instrument of reporting and more and more an act of liberal cosplay.

Among those who try to get jobs among the hate-filled leftists, there are also whispers that people should leave their military service off their legal resumes.

Conservatives cannot expect the hate-filled left to police themselves. Some sort of shaming or legal rebuttal is needed. So yeah, the federal government should refuse to do business with law firms who lobby for Al Qaeda (i.e., pro bono representation of Gitmo detainees and other forms of law fare).

[Jeff]

The problem is that Mr. Hiring Partner and his comrades will happily ignore your wise counsel. They are waging war with any weapons at their disposal, and are cheered by the fact that our side is constrained by ethics and principles. They are not so constrained. Sadly, they will continue to win until we adopt their tactics.

[John]

It sounds as though the person submitting the question to Cohen wasn't seeking guidance as much as they were affirmation from a source (The New York Times), where the questioner assumed the person handling the ethics question would be supportive of their view.

When the answer came back that was different than what they had hoped to hear, they simply ignored the advice and took the course of action they wanted to take, or possibly sought some other lower-profile source of ethics advice that did assuage their conscience by giving them they answer they wanted to hear.

[RonColeman]

I actually found out, while a law student interviewing for that critical after-second-year summer associate position over 20 years ago, that a job offer that had otherwise been coming way had been held up because it appeared on my resume that I I was "a Nazi." Yeah, the Federalist Society thing (I was the chapter president in fact at Northwestern).

Luckily this was picked up by an associate in the firm who got wind of it and explained that he was pretty clear I was not a Nazi at all. I guess this was the "network effect," too -- he was also an orthodox Jew.

[HMI]

A relative of mine, on a USC grad school admission committee, told me about 18 months ago that she had blackballed an applicant who listed his work on a Bush campaign committee on his CV. I told her I thought that was appalling and asked how she would view a conservative rejecting Democrats for grad study. She was entirely unapologetic, unashamed and responded simply that there weren't any conservatives in her dept.—thus, not a problem.

[Amor de Cosmos]

I bet the hiring committee partner who voted down Federalist Society candidates also supports his/her firm doing pro bono work for the poor guys in Gitmo.

In fact this guy or gal did them a favor: no one wants to work for a putz.

[Steve White]

I teach at a major medical school. At this time our hiring decisions (pitifully few as they are) do not have this particular problem; the issues are whether the prospective faculty person is a superb clinician, excellent (i.e., well-funded) investigator, excellent teacher, and whether the candidate plays well with others. The hiring decisions are generally more closely held by department chairs and division chiefs, but as a senior faculty person I am asked to comment, and I always confine myself to the three above-named areas.

Unfortunately, I see a time coming when the political intrudes more overtly into this process, since it is a key goal of the Left to have politics, more exactly, their politics, intrude into every space in life. The coming health care 'reform' act will make faculty hires in medicine more political, and I suppose I'll be forced to keep my own views submerged (oops! too late, they know who I am).

I believe your advice to the Hiring Partner is correct. But it pre-supposes that each of us would prefer to live by the Golden Rule -- that is, in a social construct that treats that rule as a sine qua non of professional life (gah, social construct? I sound like a leftist!).

But what if some among us do not? If the Left insists on making hiring decisions an explicitly political process, and if they can't be persuaded/forced to leave their politics at the doorstep when entering the office/classroom, what do we do? Either one submerges one's own thoughts, with the professional and personal frustration that creates over time, or one fights back.

In that regard, your 'sauce for the gander' is tempting. Very, very tempting. I'd like to think that instead I'd fight to bring the situation back to where it should be. I'd like to be strong enough.

I'm not sure I would be. The dark side of the force is strong. And it only takes a few people behaving this way to poison the process.

[EvilDave]

>>> No. Two wrongs do not make a right.
Um, that is the whole idea behind Affirmative Action.
When I made that point in 1L mock trial, the judge went ballistic.

[Carl Hardwick]

>How'd you like them apples, Mr. Hiring Partner? >After all, sauce for the goose is sauce for the >gander, right?

>No. Two wrongs do not make a right.

I used to agree with that idea, but I'm not so sure now.

If you made it clear that you'd engage in tit for tat behavior, you may well deter the leftists from doing the same. In that case, both sides would focus on hiring the most qualified applicants and everyone would win.

If conservatives refuse to fight back in kind against leftists, you set up a situation where the most rational course of action for a leftist is to blackball all conservative applicants.

Here's why:

A leftist always refuses to hire conservatives.
A conservative will always hire qualified leftists.

In that case, it would be irrational for a leftist to act in any other way. He suffers no consequences for his actions. He receives a free good from the conservatives. Net result is conservatives lose, leftists win. Why would a leftist do anything else?

In other words, the conservatives _volunteer_ to lose. If you're freely offering leftists a way to always win, of course they'll always take it.

This is classic deterrence game theory. It works for the police in deterring crime (could you imagine if there were no prison terms for criminals?) , for poker players (if you told everyone at the table that you'd never call a bluff, you'd always lose) and at the level of strategic nuclear deterrence.

Conservatives wish to win by adhering to principles of fairness. Only problem is that leftists fight dirty. Conservatives are bringing exactly nothing to a machine gun fight.

No wonder colleges are full of leftists. Conservatives gave up long ago and think they did so for good and rational reasons.

[A Late Father]

Prof B,

Convincing the American Political Right that the majority of the legal bar openly discriminates against those holding their political views.

And that legal ethics prevents the rest of the Legal Bar from effectively punishing the candidates of the political left in retaliation for that discrimination is a perscription for convincing the American Political right to view the legal system as their political enemy.

This is a very bad idea on a number of levels given a) What the American right will do for the funding of the American judicial system when it is in power and b) the firearms ownership and military participation rates of the American political right when it comes to perceive the judicial system as another name for political tryanny.

[Ignoto Fiorentino]

The good professor is correct; this is an egregious breach of trust and if the story is true, some form of response is absolutely necessary. The described conduct is so outrageous, however, that it's worth considering the possibility that the letter was a fabrication, along the lines of the fake letters that Ann Landers used to report receiving from bored Yale undergraduates. On the other hand, it could well be true.

I would be interested to learn whether the good professor agrees with "joeindc44" that pro bono representation of Gitmo detainess counts as "lobbying for Al Qaeda."

[Bob in FL]

So, unilateral disarmament is your solution, Mr. Bainbridge? Good luck with that; nice guys finish last. If at all.

[Paul A'Barge]

Admirable, but probably not a good way to win the Culture War.

[Karl K]

Randy Cohen is often an idiot and while most of his response here is fair, he simply can't help himself when he says it was "odious" to have Federalist Society membership "all but required" in some jobs in the Justice Department.

Aren't many appointments in the Justice Department political? And aren't career prosecutors just that...careerists who stay across administrations?

[Trouble]

IANAL, but, couldn't conservative and libertarian senior partners simply reorganize and start new firms?

Easier said than done, I realize.

[Horatius]

Go for tit for tat. Yep, it leads to a spiral.

Once, anyways. Then men remember.

Just make sure you win the spiral.

Because otherwise, things never change and you are destined to lose. Because as you basically inferred, Mr. Hiring Partner is getting away with bloody murder, and you're preaching the Sermon on the Mount. Well, the meek may inherit the Earth one day, but today they are getting ground in the dust. Fight back. Go tit for tat, tell them you are doing so, and kindly invite them to consider other ways.

[david]

But Professor, if you continue to adhere to a turn-the-other-cheek philosophy rather than tit-for-tat when your "liberal" colleagues are blackballing conservatives, doesn't this amount to unilateral disarmament?

Also, you say: "I would much prefer to live in an organization in which social norms promote turning the other cheek rather than retaliation. After all, the Golden Rule asks us to do onto others as we would have them do unto us, not to do as they have done to us." Problem is, you DO NOT live in an organization in which social norms promote turning the other cheek. The behavior of your "liberal" colleagues shows this. They continue to blackball conservative applicants, despite your judging applicants fairly.

The question is, what are you going to do about it - after all, Einstein said that insanity is doing the same thing over and over again and expecting different results. Isn't it time you tried something different?

[Beldar]

Your reasoning is impeccable here, Prof. B. There is an inherently mitigating function built into this dynamic: Conservative students would probably not prosper at firms so short-sighted as to send out a hiring partner who's eager to make politics a disqualifying factor; and it's entirely likely that those firms aren't going to prosper in general, at least as compared to others who renew their ranks based on genuine merit (wholly apart from political concerns).

There are some law jobs where one's politics may indeed be relevant. But when it comes to big full-service law firms, anyway -- with apologies to Groucho Marx -- I wouldn't want to belong to any club that wouldn't have me.

[mj]

"I would much prefer to live in an organization in which social norms promote turning the other cheek rather than retaliation."

That's what the left counts on, and that's why they now control the education system and the rest of government.

[Mike]

Well, it should be no surprise that part of the MSM (to use the term) are so clueless to their own biases that they inject something like "Tea Party crackpots threaten violence". perhaps it was deliberate; perhaps not.
Regardless, a simple review of the actual facts of the Tea Parties this summer (you know, what journalists are supposed to do and what editors are supposed to make them do) shows something simple: there were no acts of violence FROM the Tea Party-ers, but there were many acts of violence directed AT them. Just look up the arrest and incident reports from the places Tea Party functions took place.
Now, we can also show that in at least one place, Democrat Party members actually did damage to their own offices and tried to blame that on the Tea Party-ers - not being smart enough to do their nefarious work where there weren't witnesses and cameras.
It would be nice if the press not so much lacked a bias as recognized its own and actively tried to rely on fact instead of ideological inclination.
It is equally pathetic to listen to Nancy Pelosi, who is on video calling protestors who destroyed private property and physically attacked people "her kind of protestors", attack the Tea Party-ers as "threatening violence". Nice of her to worry about violence. Perhaps she can start with the reality, which is that all the violence this summer was FROM THE LEFT and not from the Tea Party-ers.

[joeindc44]

Mr. Hiring's acts reflects a cultural shift that somehow traditional American values reflected by the Federalist Society is now the equivalent of the Communist Party in the 50's.

If the values of these people are so far askew, then there should be some fall out. If, like most hate-filled lefties, they refuse to intellectually engage people they disagree with, they can at least feel the repercussions of their sedition.

[Charles Hammond Jr.]

"Trust among members of an organization like a law firm or a law school faulty is essential. It acts as a lubricant that reduces social friction and thereby reduces the transaction costs associated with making group decisions."

Trust only works on a two way basis. Once one person violates trust it as just as much effect as a broken contract.

Would you rather attempt to have trust in a relationship where one party has proven himself untrustworthy? It just seems like bad practice to even attempt to do so... especially for a lawyer like yourself.

I hate to say it, but trust when out the window when your colleague decided to take political matters and inject them into the workplace on his own I'm afraid. Whatever 'tolerating' you do now won't improve the situation, and I doubt any tit-for-tat actions couldn't make it any worse because he is already acting on a breach of trust.

You have potentially two spirals to choose from, one, the spiral of retribution you have firmly rejected. By so doing you have accepted the spiral of bad behavior. The only question right now is will you accept that?

[John R]

Liberals seem to have an awful lot of trouble with these ideas of tolerance and openness and inclusion which they constantly lecture others with. I propose we set up "workshops" at which liberals can have their consciousness raised and be instructed in overcoming their bias.

[Malvolio]

"A leftist always refuses to hire conservatives. A conservative will always hire qualified leftists. In that case, it would be irrational for a leftist to act in any other way. He suffers no consequences for his actions."

No consequences for refusing to hire the most qualified person? You may think jobs are purely spoils to be distributed according to political loyalty, but let me assure you, they aren't. The firm that hires the best people, left, right, and center, will outcompete the firm that hires the best leftists.

[Fred]

Why not just out the law firms. Make sure the students and clients know that no conservatives need apply there.