SPECTER: On the merits alone

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By Arlen Specter

OP-ED:

This week, the Senate Judiciary Committee held a hearing to examine reports by the Justice Department´s Inspector General (IG) on "politicization" at the department. The first such report, issued last month, brought to light facts that the committee should heed as it carries out its responsibilities in the judicial confirmations process.

Peter Keisler, who recently served as acting attorney general, was repeatedly cited in the IG's June report as having spoken and acted in opposition to those who allowed political considerations to play a role in hiring decisions in the summer law intern program and the honors program at the department. He was one of two high-level officials at the department who were praised for insisting that the decisions be based on the candidates´ qualifications.

Ironically, Mr. Keisler, who was nominated to the federal bench more than two years ago, has been unable to get a Senate vote on his confirmation because the Judiciary Committee has elevated political considerations over the nominee´s qualifications. He is a stellar nominee with a history of public service, a superb resume, extensive legal experience, the highest ABA rating, and endorsements in editorial pages of major national newspapers. Yet, Mr. Keisler is being refused a vote in the Judiciary Committee.

One can only conclude that he is the victim of the same type of refusal to make decisions based on qualifications, which the committee is now decrying.

This time last year, members of the committee, Democrats and Republicans alike, were grilling former Attorney General Alberto Gonzales about the motivation for the simultaneous firing of several U.S. attorneys. At the confirmation hearings for Mr. Gonzales´ successor, members of the committee and then-Judge Michael Mukasey - now the attorney general - spoke of the "heavy toll" allegations of "politicization" at the department had had on employee morale and on public confidence. All agreed that a renewed commitment to enforcing the "rule of law," rather than advancing political objectives, would be the touchstone for the next attorney general.

In examining what went on before Mr. Mukasey´s arrival, the IG found that in 2006, top Justice officials had "inappropriately used political and ideological considerations to deselect many [job] candidates." Mr. Keisler, the IG concluded, was one of two political appointees at the department who "deserve credit for raising concerns about the apparent use of political or ideological consideration*."

The 115-page report repeatedly references Mr. Keisler´s actions, including a conversation with the Hiring Chair, in which Mr. Keisler said, "[y]ou should know that there´s a lot of people who believe that these deselections are either irrational or so irrational that they are motivated by politics, and that´s a problem." Refusing to drop the issue, Mr. Keisler approached the acting associate attorney general to call for "a meeting of senior Department officials to discuss the next year´s hiring process to ensure that the problems they encountered in 2006 would not be repeated." Since future compliance would not aid the applicants who had been rejected on ideological grounds rather than merit, Mr. Keisler also made "a personal appeal in a telephone call on behalf of [a] candidate who worked for Planned Parenthood." As a result, the candidate was afforded consideration on the merits.

This is precisely the type of integrity in action we hope, and expect, to see in public officials. Mr. Keisler went well beyond reminding his colleagues of their legal obligations. Even though he was not directly involved in the hiring decisions at issue, he was so concerned about politicization at the department that he advocated on behalf of a candidate whose views are likely different from his own.

Those decrying "politicization" in the Justice Department should, with equal fervor, support Senate consideration of highly qualified judicial nominees who have demonstrated a commitment, even when no one was looking, to political impartiality and the rule of law.

Such deep integrity is indispensible to calming the waters at a time when there is increasing concern that judges will improperly inject their own views, or worse, political ideology, into their decision making and interpretation of the law. At an April Conference on "Enhancing Judicial Independence," retired Supreme Court Justice Sandra Day O´Connor stated that "an independent judiciary is an essential bedrock principle, and we´re losing it." She was discussing selection of state court judges, which in some states is more political than selection for federal courts. Nonetheless, any trend toward politicization of the selection process for federal judges is equally disturbing.

The Senate can continue to spin its wheels in a rut of posturing and political rhetoric, or it can begin to make some progress, albeit incremental, by providing fair treatment to an individual who would continue to serve with honor and integrity. In a politically charged atmosphere, Mr. Keisler did the right thing. I hope the Senate Judiciary Committee will do the same.

Sen. Arlen Specter, Pennsylvania Republican, is ranking member the Senate Judiciary Committee.