Aquinas, DOJ, and the Rule of Law

Brian Tamanaha invoked Aquinas to support his criticism of the Attorney General's ideological screening of DOJ applicants.  Patrick Brennan objected to this particular use of Aquinas.  Now Brian offers this response:

Patrick and I don’t disagree about Aquinas.  I assert that Aquinas supported the rule of law, that Aquinas recognized the logical and pragmatic problem that the sovereign/prince cannot be bound to the rule of law because a coercive power cannot coerce itself, and that Aquinas concluded that only by a commitment of his will can the sovereign be bound to the law, and he urged that sovereigns should make this commitment (for “whatever law a man makes for another, he should keep for himself").  Patrick does not dispute any of these points.

Where we disagree is in how (or whether) these views might be relevant to recent events at the Justice Department.  One can legitimately object that the situations are so different that there is no direct relevance, but it is nonetheless useful to draw on Aquinas’s thought to help reflect upon the situation.

I suggest that in our system the Justice Department embodies and wields the coercive power of the “sovereign,” and that the modern equivalent of Aquinas’s position entails that lawyers for the Justice Department must bind themselves by their own will to abide by and enforce the law.  My argument was that systematic ideological vetting in the hiring of Justice Department lawyers poses a serious threat to this crucial aspect of the rule of law.  This is based upon my assumption that the ideological vetting is being done with the specific aim of filling the Department with lawyers who will apply the law in a manner that furthers desired ideological goals.

With respect to this crucial issue, Patrick says only this: “The screening may raise people’s worries that they’ll be incapable of following the law that has been laid down, but that’s another matter.”  He then moves off to discuss other aspects of Aquinas’s thought (which I do not raise).

Patrick can wave off the very point of my post as “another matter,” but perhaps I can put it in terms that will help demonstrate that this worry about the screening is precisely what matters.  Rather than hire only Republicans with religious beliefs, as apparently was the case, let’s say that, in the next administration, rigid ideological vetting is implemented to hire only pro-choice Democrats, or only atheists.  Surely Patrick would object to this, and correctly so, as an attempt to undermine the rule of law by institutionalizing an ideological bias among the lawyers in the Department.  And that was my point.