ZBIG FOR LIFE

...What about "good cause...

...Assume you've run the same campaign and the voters have given you the same mandate...

...The first of his official visitors is...

...and then he begins to read...

...The decisions you would previously have made on your own, subject to the wrath of the voters, are now made in a courtroom...

...Run the tape again...

...If you read this magazine regularly, you know that it has been arguing for years that more politics, not less, offers the best hope of making our governmental bureaucracies more responsive to the people they govern-and that in the concept of "partisan politics" lies the key to the only effective way that a majority can organize itself to govern...

...To appreciate the effect of this transformation, consider the decision-making process implicit in the government of a city where a substantial number of jobs were distributed under the old "spoils" system...

...I mean, can the voters just arbitrarily fire a presiden.t, who has given them his best efforts, solely because of "mere differences of political persuasion...

...From this angle, plea bargains are a three-cornered de~l in which, alternatively, the interests of the defendant, the state, or justice are apt to be sacrificed...

...A trial requires careful preparation, draining courtroom performances, and usually involves several messy questions of criminal procedure...

...any guesses...

...Even if the hearing officer decides in your favor, the employee can appeal to the courts, where anywhere from one to three layers of judges-all unaccountable to the voterswill review the hearing officer's findings...

...It is the antithesis of Jobbism in that, by making ideological loyalty a test of employment, it seeks to fuse politics and duty, and so ensure that the people who run the government are committed to what it stands for...

...the walls and shelves have been cleared of Jimmy Carter's memorabilia...

...long halls, looking desperately for Keke...

...From all appearances, none' of the members of the majority in the most recent anti-patronage case, with the possible exception of the Chief Justice, is a certifiable fool...

...In fact, practically any government employee you can name takes actions that are of legitimate partisan concern, for the simple reason that in a democracy every government action is potentially an issue for public-and hence partisan-debate...

...But the Court had been badly divided on that occasion, and had specifically permitted politicians to continue the practice of firing "confidential or policymaking" employees on the basis of party loyalty...

...Individual attorneys might be accused of failing to challenge invasions of privacy by the police...

...In triumph, he proceeds to the White House...

...Democracy surely means the freedom to think what you like, but it also means the freedom to act on those thoughts, to try to organize your fellow citizens into a political majority...

...then sell it to his c:lient, they can all avoid this work and enjoy the weel<.end...

...What was once the decision of an official, accountable to the voters and acting only after weighing a variety of considerations, becomes instead the decision of an unelected judge or hearing officer, acting after two lawyers, each representing a single narrow interest, have slugged it out in a trial...

...The majority this time included "conservatives" like Warren Burger and Byron White as well as "liberals" like Brennan and Thurgood Marshall...

...Of the thousands of employees, you are allowed to replace only two or three top "policy makers...

...The initial decision-makers would not be the politicians, but the voters...

...The man enters, h~nds Anderson a receipt to sign, presents him with a copy of a legal brief, and then exits silently...

...Touching the Bases Instead of idealism, or the threat of voter retribution, the Supreme Court's preferred means of motivating the government worker appears to be the "good cause" dismissal...

...And for that majority, de~ mocracy means the right to effectively control the government that it chooses...

...Our beliefs are to be protected, it seems, as long as we aren't likely to do anything about them...

...Because of your patronage power, you can hire the people you think will most effectively carry out your ideas-from the Highway Department director and his engineers, who help you decide which streets to re-pave and which to let go for now, on down to the workers who actually fill the potholes and who, if they aren't on your side, can make repairs that will wash away in the next light shower...

...Everything else is to be determined on a case-by-case basis, with the burden of proof falling on the politicians...

...Anderson is dumbfounded...

...From the point of view of the individual worker, of course, this system looks pretty good...

...Enough facts...

...Suppose the voters have just elected you mayor in a city operating under the pure "merit" system favored by the Court...

...In the name of the "First AmendmenC' interests of the officials themselves, the Court is willing to tolerate the removal of their entire conduct in office from the "uninhibited, robust, and wide-open" debate that is the whole point of the First Amendment...

...The whole point of the patronage rulings, the Court tells us, is to protect the individual employee's freedom of political belief, beliefs that are "inhibited" when party bosses demand loyalty...

...If you read your newspaper regularly, you probably know that Finkel and Tabakman made a federal case out of them, and that three years later the U.S...

...If you were a challenger, you would promise to do a better job, and appeal to the voters to throw the bums out...

...The virtue of Jobbism seems clear': it relieves people of the need to be constantly asking whether what they do has meaning, serves a purpose...

...I· can think of any number of "policies" a public defender might want to make, with the cooperation of his assistants, that would be an entirely legitimate concern to the public at large, and hence be appropriate...

...If anyone period burned this version of liberty into our national consciousness, and our law, it was the McCarthy era...

...A Little Lawsuit It is an indication of how far the Court has gone in the opposite direction that, if you take the language of the latest decision seriously, it's an open legal question whether a newly elected governor, or president, may appoint his own cabineL Why should they lose their jobs because of their political beliefs and associations...

...From another perspective, however, plea bargaining raises some questions...

...But the civil service has had a malignant momentum, to the point where we have almost nothing else in the federal government (where there are fewer than 3,000 patronage jobs in a bureaucracy of 2 million souls) and, increasingly, at the state and municipal levels as well...

...In particular, his tenacity in following orders is apt to vary in inverse proportion to the extent to which those orders threaten his agency's budget, and inferentially, his job...

...On the other hand, if you lose, you are faced with the bracing prospect of spending the rest of your term trying to work with someone you have denounced in open court as an incompetent...

...But let's look at just one recurring controversy: plea bargaining...

...It looks to him...

...Merit systems" are simply what gave the federal government the reputation for efficiency it enjoys today...

...Whenever you see the magic words "good cause" in connection with the attempted firing of federal employees, picture in your mind a hearing, fully equipped with lawyers, cross-examination, subpoenas, witnesses, motions, delays-because the Supreme Court has ruled that the "due process" clause of the Constitution requires no less...

...We are not persuaded," Brennan writes...

...when those bases in fact exist...

...Imagine that John Anderson has just taken the oath of office at the Capitol...

...It's always tempting, in a situation like this, to let fly with a howl of righteous fury against your enemy, but the better strategy is to try to understand him first...

...The principle is illustrated by the fact that, while the Court has quickly stepped in to declare unconstitutional the firing of government workers on the basis of their political thoughts, it has upheld, in ringing language, the direct, explicit ban on their political activity contained in the Hatch Act...

...It is reflected in the fact that even the most conscientious federal officials know that, if everything goes on schedule, it still takes 120 days for an "initial" decision after an employee challenges his discharge at a hearing-and an additional six months if he appeals that decision within the MSPB...

...If the principle of a hearing sounds like a matter of simple justice-protecting innocent workers against the arbitrary and capricious whims of their employers-the reality is disturbing...

...And even from the point of view of the public at large, the barrier of hearings and appeals, protecting a core of "merit" workers, may present several advantages...

...The Court's reasoning was simple: Finkel and Tabakman had been dismissed solely because they were Republicans...

...They are not football coaches, to be surebut neither are they lobbyists, speechwriters, or press secretaries, which fire about the only jobs for which the Collrt has conceded that politics is "a legitimate factor to be considered...

...This is not a very generous admission...

...The public defender's office might be awash in waste, br corruption...

...When the voters threw the Republicans out of power in 1977, the new Democratic majority fired the Republican Public Defender and appointed a Democrat, Peter Branti, who in turn refused to reappoint Finkel and Tabakman, in order to fill their slots with lawyers from his own party...

...During the witch-hunts we saw what could happen when politicians attempted to impose thought control, and we concluded it was none of the government's goddam business what its employees believed, as long as they were doing their jobs...

...The best way to understand it, I think, is as part of a larger assumption about the relationship between people and their work...

...From another perspective, it might seem bizarre that a mail clerk who believes that abortion is murder would nevertheless diligently deliver Medicaid checks to mothers wishing to terminate their pregnancies...

...The other lawyer, representing the employee, accuses you of "political motivation...

...Now a strong majority of the Court was tightening the noose a bit more, protecting public defenders from political firings even though they might "make policy...

...The political leaders of the party out of power would, of course, seek to discredit the incumbents, pointing to tax increases, the poor quality of the schools, and the chuckholes in the city's streets...

...Plea bargaining is, simply, a way criminal attorneys avoid having to go to trial...

...Needless to say...

...First Amendment...

...One of the "passive virtues" of our court system is its ability to leave pressing national issues hopelessly unresolved, and this virtue is abundantly displayed in thekey phrase in the decision-what lawyers like to call the "standard" that is to guide the lower courts-reads as follows: "In sum...

...Just a little lawsuit, the kind the Supreme Court loves to hear...

...And they mean a qllantum jump in work for the judge as well-he, after all, must sit through them and rule on all tne questions of law the attorneys raise...

...It appears that Zbigniew Brzezinski is suing to keep his job as National Security Adviser...

...Let's take this example, since it's the one we've been given...

...The term is borrowed from Oliver Wendell Holmes, who fancied himself a member of "an imaginary society of the jobbists, who were free to be egotists or altruists on the usual Saturday half-holiday provided they were neither while on their jobs...

...Why not carry the Court's reasoning a step further...

...If you're an ordinary mortal, it's at this point that you start leaving the office early, attending ceremonial luncheons and mid-afternoon ribbon- cutting festivities, and deciding to go to that upcoming week-long conference of mayors in Honolulu.But let's suppose you decide to give it a try and forge ahead with a few "good ca use" dismissals...

...the court system gets to process cases more swiftly...

...I'd sue...

...In the civil service, employees are effectively insulated from the sort of daily judgment of performance to which even the most well-established lawyers are regularly subjected...

...Indeed, plea bargaining is one of the most controversial issues of criminal law...

...But the Supreme Court has taken that decision away from the voters too...

...And confirmation that the Justices don't regard partisan politics as "appropriate" to much in government comes quickly, when the Court gets down to the case at handnamely, Finkel and Tabakman...

...The reader scans the page for something, anything to support this remarkable assertion, but in vain...

...As soon as you are elected, you will begin working hard at getting to know personally as many city employees as you possibly can, checking out the others through the best sources you have...

...Carter v. Reagan...

...It all but eliminates any chance that he will be fired arbitrarily...

...such interference with constitutional rights is impermissible...

...Why stop there...

...In the Jobbist scheme that the Court is enforcing, being a Democrat, Republican, Libertarian, or socialist becomes a sort of private creed, to be practiced quietly at home, or at best a sort of ceremonial fellowship, cemented perhaps by secret handshakes, on the order of the Kiwanis or Elks...

...At last, I can make this government work...

...You are smart enough to know there are times when you want a good lobbist in your corner, and you enjoy sifting through the government looking for them, shaking up the departments, cleaning out the warm bodies, and, by doing so, impl.icitly recognizing and rewarding the survIvors...

...Not surprisingly, most of the precedents cited by the Supreme Court in this year's patronage decision date from the 1950s...

...One represents you...

...But, of course, the real expense of the system is not reflected in these out-ofpocket costs...

...Just as the lawyer may not denounce his client, the civil servant may not, in theory, disobey "policy...

...It is a trend that can only be accelerated by the latest Supreme Court decision...

...The argument does not succeed, because it is doubtful that the mere difference of political persuasion motivates poor performance...

...Where the Jobbist ethic seeks to overcome both idealism and self-interest, the patronage system would harness them...

...The intercom on the phone buzzes, startling him out of his reverie...

...This the Court has called "the subordination of some First Amendment activity to protect other such activity...

...But if the Finkel case is any indication, the Supreme Court seems to have embraced another vision of government, which measures progress in terms of words like "professional" and "merit" and "good cause," while words like "politics," "partisan," and "influence" are epithets that signify decay...

...On the other hand, the Court allows that "it is equally clear that the governor of a state may appropriately believe that the official duties of the various assistants who help him write speeches, explain his views to the press, or communicate with the legislature cannot be performed effectively unless those persons share his political beliefs and party commitments...

...Unless you are a real fool, you will not fire all the employees of the previous administration...

...More important, the tenured official is just as likely to temper his performance with self-interest as with idealism...

...One reaction to these assertions is to point out that the Merit Systems Protection Board (MSPB), which administers the federal version of the merit system, holds roughly 8,500 disciplinary hearings a year...

...He has no urgent personal concern in making your administration succeed, and need not account to the voters for his actions...

...Might not government workers who disagreed with the policies they were enforcing be inclined to resist them, while those who believed in them would be motivated to make them work...

...Brzezinski is arguing-Anderson is flabbergasted-that he has a constitutional right to stay on in his job, that firing him would "penalize and inhibit" his "freedom of political affililltion...

...Since real fools do manage to get elected from time to time, the old all-patronage system was bound to need reform...

...Trials, in short, are what give criminal lawyers ulcers...

...Government needed some civil servants, to ensure continuity and to help protect the processes of government against the ravages of an inept or crooked administration...

...It often means indiviqual responsibility for whether a man will go free or go to prison...

...What about his First Amendment rights...

...But the Court did drop a few clues for future generations to sift through...

...The room is empty of furniture except for the desk and telephone...

...First and Tenure After the Supreme Court's latest pronouncement, what jobs are left for the politicians to fiJI...

...If the politicans can't show an "overriding" interest in a particular job, then politics is out...

...If I were Zbig, and I wanted to keep my job after Carter lost the election, I wouldn't change my mlfty registration, or cuddle up to the winner...

...It is thi~ sense of democracy that is left out of both the J obbist definition offreedom, and the Court's musings on the spoils system and the "appropriate" role of politics...

...Their personal views, as Holmes dictated, are left for the weekend...

...And it is precisely the sort of practice that should be subject to a full public debate, and constant public oversight...

...From the Jobbist perspective, it is the only means of avoiding the chaos that would result if each clerk were to decide which checks to process and which to let fall on the floor...

...He accuses the employee of poor job performance...

...He decided that it is virtually costless...

...When the Justices argue that the "spoils system" violates the individual freedom of government employees, it's a special sort of freedom that they're talking about...

...For all of its well-known abuses, the spoils system provides an antidote to these tendencies...

...It is, in fact, simply the essential principle of Jobbism: that people in our society are not motivated by their beliefs, that Republican employees will happily implement Democratic policies...

...Call it Jobbism...

...First Amendment rights may be required to yield to the State's vital interest in maintaining government effectiveness and efficiency...

...Anderson looks at the title page: Brzezinski v. Anderson...

...He picks up the receiver...

...You win-now you are the mayor, faced with the exciting prospect of actually being able to implement your programs...

...If you know someone who is a criminal attorney, you know that the one thing that keeps him up on nights and weekends is the prospect of going to trial...

...That's their job...

...But it also means that we can forget about a government that moves with clockwork efficiency to implement policies of which we do approve...

...It is, for Anderson, a moment to be savored-the symbolism is so obvious that he can hardly fail to appreciate it...

...All of which adds up to some good reasons why the voters might want to create a merit system covering some of the city's jobs...

...Yes, there's no mistaking it, as Anderson reads on...

...Defense attorneys don't ask if the accused is innocent, they simply defend him...

...In the end, this is a short ration of freedom...

...But in the same breath the Justices assure us that these deepest considerations of conscience are surely not important enough to affect anyone's performance on the job...

...For one, the separation of work from belief becomes unenforceable...

...The Supreme Court had displayed this logic before, most notably in 1976, when Justice William Brennan had pronounced similar judgment on Chicago's patronage machine...

...What is left to them both is the freedom to think what they like-as long, of course, as it doesn't interfere with their jobs...

...Both these ideas imply limits on the ability of government officials to remain unaffected when their own beliefs are rejected by the voters...

...What the patronage cases say is that the Court is to decide which jobs are to be insulated from politics, and which other jobs fall in the blurry category where "an employee's...

...If someone cannot be sacked because he is a member of the National Lawyers Guild, the argument goes, surely Finkel and Tabakman cannot be fired because they're Republicans...

...Brennan concluded this much in 1976, when he said that "the greater effectiveness of patronage over [merit systems], if any, is at best marginal...

...As a member of the public that was paying those salaries, I might want to do the same...

...Which brings us back to Zbigniew Brzezinski...

...Combine Jobbism with tenure, then, and strange things begin to happen...

...They had been appointed by the County Public Defender, a RepUblican official chosen bya Republican county legislature-and in keeping with the patronage tradition in the county, Finkel and Tabakman were Republicans too...

...No wonder less than one half of one percent of the federal government's "merit" employees are discharged each year...

...And to support his argument, he's citing a 1980 Supreme Court case called Branti v. Finke...

...They had thus lost a "valuable government benefit" (e.g., their $16,700/year part-time jobs) because of their "constitutionally protected interests" (e.g., their right to be Republican...

...What do the Justices think pays for these procedures, a grant from Xerox Corporation...

...Save Me The Weekend Political freedom, in the Jobbist system, exists only behind the wall that separates private life from public role, the weekend from the week...

...Yet the Supreme Court seems to be saying that it would somehow not be "appropriate" for the Democrats or RepUblicans in Rockland County, New York, to take a stand on the public defenders' handling of plea bargaining-or any other issue relating to the administration of the office...

...He can hardly believe his eyes...

...At the same time, when it looks at the civil service, it sees only the idealized image of the buzzing law firm writ large, diligently serving its public clients...

...The Society of lobbists Let's start with the facts: Aaron Finkel and Alan Tabakman were assistant public defenders in Rockland County...

...The rest are "merit" jobholders, and if you are to fulfill your promise to straighten out the mess in the department, you must somehow single out the rotten apples, charge them with insubordination or poor performance, and amass a file that will have a chance of surviving a hearing...

...Jobbists first, and they will serve Democratic and Republican masters with equal fidelity, much as a good law firm would serve its clients...

...subjects of "partisan political interest...

...But if the judge, prosecutor, and public defender can get together on a plea bargain, and if the public defender can...

...To Brennan, no support is necessary...

...The "coach of a state university's football team" is constitutionally protected from politics, for example, because "no one could seriously claim that Republicans make better coaches than Democrats, or vice versa...

...Their "freedom of political affiliation" had thus been "penalized and inhibited...

...Someone's got to help him figure this thing out...

...Anderson bursts through the door and races down the...

...When the lawyers get through, the actual decision is made by a third party-a hearing officer who is, himself, a "merit" appointee...

...But wait a minute...

...If, after the entire process is over, you win, you have succeeded in firing a single employee...

...This foot-dragging ability is often advanced as a virtue of the civil service, an argument traditionally documented with a reference to the presidency of Richard Nixon and his failed attempts to subvert the IRS and FBI...

...This time, you take a look at the Highway Department and stop cold...

...From one perspective, the plea bargaining really is a bargain for everyone: the defendant gets punished for a less serious crime than he probably committed...

...Specifically, employees may always be discharged for good cause, such as insubordination or poor job performance, when those bases in fact exist...

...the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved...

...And by tying their fate to the fate of their party, the system lets these officials know that if they don't produce, the voters may turn them out of their jobs in the next election.But when the Supreme Court looks at patronage, it sees only the dark side-the threat to government workers' individual beliefs, and not the appeal to them...

...Central to the ideal of Jobbism, then, is the notion that a job is a role-and that society can be expected to work best when everyone simply accepts his role, performing it as wellas possible and not questioning it...

...by Robert M. Kaus Imagine it is January 20, 1981...

...If we can trace the origins of their position, perhaps we'll be able to do better at pointing out to them the error of their ways...

...In this room are two lawyers...

...Typically, the prosecutor and defense attorney will negotiate over the prospects for conviction, and then the prosecutor will offer to drop some of the charges if the defendant will plead guilty to other, less serious charges...

...Faced with the prospect of spending most of his term in office in litigation over a single discharge, the conscientious official doesn't even try...

...Nails it down, wouldn't you say...

...Supreme Court determined that the replacement of the two attorneys had been nothing less than unconstitutional, a violation of their rights under the...

...That's assuming the employee doesn't seek further review of his case in federal court, where delays are measured in years instead of months...

...You shouldn't...

...What this innocuous phrase means, of course, is that before any employee can be discharged, there will be a hearing at which he will have the opportunity to argue that those bases in fact don't exist, while the government must prove that they do...

...They would decide whether to retain the party in power...

...The quintessential Jobbists, of course, are lawyets-a fact that may account for no small part of the appeal of the idea to the Supreme Court...

...True, when a Nixon is in charge, the presence of tenured officials who can dig in their heels can be a blessing...

...Their job is their contribution to the general welfare, and when a man is on that, he will do it better the less he thinks either of himself or of his neighbors, and the more he puts all his energy into the problem he has to solve...

...Applied to the government, the Jobbist ideal yields up the model of the professional civil service, competently carrying out the directives of its leaders...

...Next case...

...President, I'm sorry to disturb you," a secretarial voice says, "but there's a process-server here to see you...

...He did not simply say that a "merit" system is fairer to the employee...

...The members of the bureaucracy may be Democrats, Republicans, or cardcarrying cadres of the Flat Earth Society, but they are...

...Lawyers aren't the only Jobbists around, of course, they're just the easiest variety of the bird to spot on the wing...

...No need to pack up for Plains...

...a process-server...

...True, lawyers are remarkably successful at managing this moral schizophrenia- but they are encouraged in the attempt by the hard fact that clients rarely show pangs of conscience themselves' about dumping a law firm that has lost a case through sloppy work...

...The Justices know which image they prefer...

...This sentiment quickly became part of our Constitution, as the courts stepped in to prevent government workers from being fired because of their beliefs...

...The ultimate sin in a Jobbist world is to penalize a man for his political beliefs even though he is doing his work, because that deprives him of the weekend along with the week...

...While he may not refuse an assignment he thinks is wrong, the civil servant may resort to one of the many techniques of subtle resistance available to an experienced bureaucrat...

...These employees may be more likely to tell the politicians when they are wrong, or even "blow the whistle" on them...

...While Keke occupies herself with meeting the staff, Anderson visits the Oval Office for the first time...

...Justice Brennan concludes his 1976 assessment of the patronage system by asserting that, even without patronage, "means for insuring government effectiveness and employee efficiency are available to the State...

...You will want to keep some of these peoplenot only because they can provide you with access to past experience, and because they provide the city with continuity, but because you really hope to capitalize on their skills...

...But how easy is it to seal off our day-today labors from our deepest personal feelings...

...If I were a public defender, I'd want to keep a close watch on the practice, to make sure that my assistants were earning their salaries...

...the statement is self-evident...

...Oh, it's unlikely-but not beyond the realm of possibility, if we take seriously what the Supreme Court said three months ago in striking down the "spoils system" in Rockland County, New York...

...If Lloyd Cutler begins drawing up the papers right away, the administration could be ready for Anderson or even Reagan the day they walked in the White House door...

...A fresh start," he thinks...

...This is where the parallel between lawyers and the civil service comes apart...

...You are looking not only for the competent engineer, but also for the street crew leader whose touch with potholes is legendary...

...Young corporate attorneys may have revolutionary posters on the walls at home, but they stay up nights writing briefs for Exxon...

...You find this far-fC:!tched, of course...

...The key comes in Brennan's opinion in the 1976 case, when he pauses to consider the possibility that patronage systems may provide some incentives that "merit systems" do not...

...well, it looks to him as though, if Brzezinski is right, Anderson may not be able to appoint anybody . .. to anything...

...In the Jobbist scheme of things, being a Democrat, Republican, Libertarian or socialist becomes a private creed, to be practiced quietly at home, or a ceremonial fellowship on the order of the Kiwanis or Elks . .. Suppose they do...

...It is manifest," the Court asserts, in its best ex cathedra voice, "that the continued employment of an assistant public defender cannot properly be con<;litioned upon his allegiance to the political party in control of the county government," because "whatever policymaking occurs in the public defender's office must relate to the needs of individual clients and not to any partisan political interest...

...The answer is, nobody knows...