What "the rule of law" doesn't require

Brian Tamanaha says he and I agree about Aquinas.  I'm not sure we do, but I'll leave that for another day.  Brian's account places an emphasis on coercion that I think occludes what, on Aquinas's account, makes law obligatory.

Now, to the matter at hand.  I'll stipulate that Brian is right that the rule of law requires that "lawyers for the Justice Department must bind themselves by their own will to abide by and enforce the law."  Brian's next claim, in the immediately succeeding sentence, is that the "systematic ideological vetting in the hiring of Justice Department lawyers poses a serious threat to this crucial aspect of the rule of law."  But which "crucial aspect" is he referring to?  The question, which I take to call for an empirical answer, is whether those who enter after a process of "systematic ideological vetting" are in fact, or are likely to be, successful in "bind[ing]" themselves to abide by and enforce the law.  If the answer be in the affirmative, then I'm not sure what the worry is with respect to "filling the Department with lawyers who will apply the law in a manner that furthers ideological goals."  If the people getting hired at Justice don't follow the law, that's not a threat to the rule of law, that's a failure of the rule of law.  If the people getting hired at Justice are following the law, then, pro tanto, the rule of law is secure.

Now, let me be clear.  First, I do think that prudence dictates against some of what I understand the DOJ to have been up to with respect to hiring.  But I wouldn't leap, as Brian seems to, to the worry that the rule of law is threatened when people are given preference for their political views and commitments.  There may be things to object to in the process that the DOJ has apparently recently used, but I don't think "the rule of law" is is lost or on the ropes until you can say that people aren't following -- or, perhaps, are about not to follow -- the law.  To acknowledge the elephant in the room, Article III judges get nominated in part because of their political and moral commitments.  The question going forward is always whether, as an empirical matter, each individual judge is following the law.  Why is the issue importantly different at DOJ?  Second, with respect to what officials at DOJ do in the interstices of or the open-textured spans of "the law," Congress could seek to affect it by requiring that appointments by politically balanced, on the model of the "independent commissions."  But, becasue Congress hasn't sought to do so, and because so far forth the evidence seems to be that the appointees are following the law and interpreting it in a way that is consistent with our traditions of interpretation, there is no loss of, nor a demonstrable threat to, the rule of law.  Again, I'm not saying the "screening" we're hearing about was prudent.  In the end, I suspect Brian of trying to get too much from "the rule of law," perhaps in part because objections that sound in prudence may require a moral or political theory that is contestable in a way that Brian thinks "the rule of law" is not.  The "rule of law" seems a strange weapon with which to attack "ideological bias" that has not been demonstrated to lead to lawlessness or unlawfulness.