Memo urged delay of judicial nominee

A Senate Judiciary Committee lawyer urged Sen. Edward M. Kennedy to use the judicial-confirmation process to affect an affirmative-action case to which she once had been a party.

When Olati Johnson worked as a lawyer for the National Association for the Advancement of Colored People (NAACP), she represented students supporting the University of Michigan’s affirmative-action program in the landmark court case that decided the constitutionality of race-based preferences in university admissions programs.

As the case journeyed toward the Supreme Court, Ms. Johnson quit the NAACP and became a lawyer on the Senate Judiciary Committee for Mr. Kennedy, Massachusetts Democrat.

There, in April 2002, she and Mr. Kennedy’s chief legal counsel urged the influential Judiciary Committee member to stall a conservative nominee to the 6th U.S. Circuit Court of Appeals until after that panel had ruled on the University of Michigan case.

“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,” Ms. Johnson wrote to Mr. Kennedy in a memo obtained by The Washington Times.

Neither Ms. Johnson nor former chief counsel Melody Barnes still work for Mr. Kennedy.

“That is a stunning development,” Sen. Jeff Sessions, Alabama Republican and member of the Judiciary Committee said yesterday. “If she was a party to that lawsuit, I am shocked and stunned that she would take action that had a direct impact on the outcome of that historic case of national importance.”

Tennessee Judge Julia S. Gibbons — the nominee in question — was not confirmed until after the panel upheld the University of Michigan Law School’s racial-preferences program on a 5-4 vote. But Democrats blame a Republican senator for the delay.

Jeffrey Mazzella, director of the Center for Individual Freedom, asked for an official inquiry into the matter by the Senate.

“The cloud of corruption hanging over Senator Kennedy and his office is growing darker,” Mr. Mazzella said. “If the Senate ethics committee does not immediately investigate and punish the shameful behavior detailed in the memo, then it can no longer maintain any credibility.”

Mr. Kennedy yesterday declined to condemn his ex-staffers, and an aide halted a press conference after questions turned to the memo.

Asked whether he’d read the memo, Mr. Kennedy hurried toward his office and said: “I am so troubled, as other members of the Judiciary are, in the fact that Republican staffers would burglarize this confidential material in the Judiciary Committee. … We can’t have staffers — in this case, Republican staffers — believing they can basically commit criminal crimes in order to advance a political agenda.”

When he got to his office, staffers ushered him inside and shut the door. They later declined to answer any more questions about the matter because the memo — along with thousands of others — had been downloaded from Democratic computers by two Republican staffers who since have resigned.

According to the April 17, 2002, memo, Elaine Jones of the NAACP Legal Defense and Educational Fund, who was Ms. Johnson’s former superior, called Mr. Kennedy’s office to enlist its help in keeping the 6th Circuit panel pro-affirmative action.

Ms. Jones and Ms. Johnson — neither of whom returned phone calls yesterday — are listed in court papers as attorneys for “defendant-intervenors,” meaning parties given defendant status because they are directly affected by the outcome of the case.

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