Federalist Society, Job Searches, Legal Ethics, Politics

Discriminating Against Conservatives in Law Firm Hiring:Is It Wrong?

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That was the question posed in yesterday’s popular Ethicist column, in the New York Times. Here’s the question 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.

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This strikes us as wise advice. You can read Cohen’s complete response over here.

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:

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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, “[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 section of its website, it is not affiliated with either party, and it does not take political positions. From the Fed Soc FAQ:

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. 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 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 to the Fair Housing Act.

(Or it might not be. Some people feel that the Mrs. Murphy exception should be repealed.)

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.

Taking on Unlikables [New York Times]
Hiring Lawyer Rejects Federalist Society Members–and Columnist’s Advice [ABA Journal]

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