By Dan Eggen
Washington Post Staff Writer
Saturday, May 26, 2007
The Justice Department considered political affiliation in screening applicants for immigration court judgeships for several years until hiring was frozen in December after objections from department lawyers, current and former officials said yesterday.
The disclosures mean that the Justice Department may have violated civil service laws, which prohibit political considerations in hiring, for as long as two years before the tenure of Monica M. Goodling, the former aide to Attorney General Alberto R. Gonzales who testified about the practice this week.
Goodling told the House Judiciary Committee on Wednesday that she "crossed the line" in considering political affiliation for several categories of career applicants at Justice, including immigration judges.
The attorney for D. Kyle Sampson, Gonzales's former chief of staff, said yesterday that Sampson and other officials also forwarded names of politically connected applicants for the immigration courts, based on legal advice that Sampson was given and on common historical practice in the department.
"Based on this understanding, Kyle Sampson and others in the department believed it appropriate to forward names of qualified candidates who enjoyed political support," Bradford A. Berenson, Sampson's attorney, said in a statement.
Sampson began working at Justice in late 2003, and officials said the practice probably began in early 2004. Goodling became Gonzales's counsel in October 2005, and his senior counselor and White House liaison in April 2006. The Justice Department said yesterday that its administrative immigration courts are covered by civil service laws that prohibit political considerations in hiring.
The department's hiring practices have come under scrutiny in the furor over the firings last year of nine U.S. attorneys. A Justice Department investigation of the dismissals has been expanded to include whether Goodling and other Gonzales aides improperly took politics into account in hiring for nonpolitical jobs.
Goodling testified that Sampson told her that the department's Office of Legal Counsel had concluded that immigration judges were not covered by civil service rules. The Justice Department said after her testimony that it had "located no record" of an OLC opinion that reached that conclusion.
Goodling's attorney, John M. Dowd, said in a statement yesterday that Goodling was referring in her testimony to the verbal advice from Sampson, not to any formal opinion from OLC.
Berenson said the legal debate over whether immigration judges are covered by civil service rules "was highly uncertain and legally complex."
The nation's 226 immigration judges are civil service employees appointed by the attorney general. Gonzales has appointed 26, while his predecessor, John D. Ashcroft, appointed 49, Justice officials said.
A number of the judges appointed over the past two years have strong Republican or Bush administration ties, including former senior Justice officials and a former GOP counsel on Capitol Hill, records show.
One judge appointed in 2005, Garry D. Malphrus, was associate director of the White House Domestic Policy Council from 2001 to 2004, records show. Another, appointed last year, Mark H. Metcalf, is a former Justice and Defense department lawyer who unsuccessfully ran as a GOP congressional candidate in Kentucky.
Officials said yesterday that the debate over immigration judges came to a head late last year when, in response to a lawsuit, department lawyers concluded that political considerations were improperly used in the selection process. Hiring was suspended from December until April, when a new merit-based personnel process was put in place, the department said.
Also yesterday, the House Judiciary panel announced that it would seek testimony from outgoing Deputy Attorney General Paul J. McNulty and a second round of testimony from William E. Moschella, a senior McNulty aide. Goodling alleged that McNulty was "not fully candid" with Congress about his knowledge of White House involvement in the prosecutor firings and other issues. McNulty, who is resigning in the summer, denied the allegations.