The Purloined Memos

The Democrats think everyone should be alarmed over the theft of their Senate Judiciary Committee staff memos. The Republicans think the hoopla about the alleged theft (no hacking was involved, they say) is a clever attempt to divert attention from the serious wrongdoing that was contained in them. The most disturbing item, according to an article in today’s Washinton Times, was a memo describing a conversation with Elaine Jones, then head of the NAACP Legal Defense Fund. (She resigned after this memo came to light.)

The April 17, 2002, memo describes a call from Elaine Jones of the NAACP Legal Defense Fund, who asked that Judge Julia S. Gibbons’ nomination be stalled until after the 6th U.S. Circuit Court of Appeals had decided a landmark court case over the University of Michigan Law School’s race-based admissions program.

“The thinking is that the current 6th Circuit will sustain the affirmative action program, but if a new judge with conservative views is confirmed before the case is decided, that new judge will be able, under 6th Circuit rules, to review the case and vote on it,” a staffer wrote to Mr. Kennedy, Massachusetts Democrat.

The staffer also advanced Ms. Jones’ recommendation of moving forward the nomination of Hawaii lawyer Richard R. Clifton to the 9th U.S. Circuit Court of Appeals instead of Judge Gibbons.

The Kennedy aide went on to say she was “a little concerned about the propriety” of stalling a nominee based on the outcome of a particular case, but endorsed the strategy anyway.

“Nevertheless we recommend that Gibbons be scheduled for a later hearing: the Michigan case is important, and there is little damage that we can foresee in moving Clifton first,” she wrote after consulting with a second staffer.

The headline of the Wash.Times article was “Legal scholars troubled over the Democrats’ memo,” but according to the actual text of the article, however, only some legal scholars were troubled.

“My jaw dropped when I heard that one,” said Ronald D. Rotunda, a law professor at George Mason University. “It’s very troubling.”

….

“Wow,” Georgetown University law professor Jonathan Turley said when he read the memo. “It raises very serious questions about propriety. On its face, there is an element of complicity and dishonesty.”

….

Pepperdine University’s Douglas Kmiec called the effort “panel-stacking. It assumes that the law is equivalent to politics,” he said. “It also assumes that it is perfectly licit to get a favorable outcome by basically rigging the process.”

The Times analysis discovered that

for all of 2001 and 2002, the average wait between hearing and confirmation was 33 days excluding recesses. Judge Gibbons waited 81 days.

In that two-year period, 101 nominees were confirmed; only four waited longer than Judge Gibbons. Of those, three were deemed “controversial” by Democrats and stalled for months while Judge Gibbons was described as “uncontroversial” and won unanimous approval.

The Times also reported that the only legal scholars it contacted who did not condemn the Kennedy memo “were University of Chicago’s Cass R. Sunstein and Harvard University’s Lawrence H. Tribe, two law professors who are widely credited with developing the current Democratic strategies to block Republican nominees.” Sunstein, in fact, actually seemed more concerned about discussing or reporting the alleged transgression than the transgession itself.

“I don’t want to comment on stolen materials,” Mr. Sunstein said. “Even if there is something bad in there, it would be improper of me — and possibly of you — to comment on them.”

I wonder if Sunstein thought it was improper for the New York Times to report on the contents of the Pentagon Papers or for other papers to report other apparently newsworthy items provided to them by sources who had come by their material in ways that were not above board.