- The Washington Times - Wednesday, December 3, 2003

Several conservative activists charge that an NAACP attorney acted unethically and should be disbarred for asking Sen. Edward M. Kennedy to stall the confirmation of a judicial nominee who the lawyer feared would rule unfavorably on a case involving the group.

Elaine Jones, president of the National Association for the Advancement of Colored People Legal Defense Fund, asked Mr. Kennedy, Massachusetts Democrat, to block the nomination of Tennessee Judge Julia S. Gibbons to the 6th U.S. Circuit Court of Appeals until after that panel had ruled on last year’s landmark affirmative action case, an internal Democratic memo showed.

“It’s manipulating the outcome of a case to which you are a party,” said Jeffrey Mazzella, director of the Center for Individual Freedom. “It’s no less than tampering with a jury or bribing a judge.”

Mr. Mazzella, along with several other groups concerned with the federal judicial selection process, have drafted a complaint with the Virginia State Bar that they plan to file this week.

The charge stems from an April 17, 2002, memo advising Mr. Kennedy of a phone call from Ms. Jones.

“Elaine would like the Committee to hold off on any 6th Circuit nominees until the University of Michigan case regarding the constitutionality of affirmative action in higher education is decided by the en banc 6th Circuit,” two staffers wrote to Mr. Kennedy. “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.”

In the memo, the Kennedy staffers endorse that strategy.

“This goes so much beyond judge-shopping,” said Kay Daly, president of Coalition for a Fair Judiciary, one of the groups filing the complaints against Ms. Jones. “It raises serious questions about how this case was decided and what her role in it was.”

Ms. Jones did not return a phone call seeking comment.

Separately, the conservative legal watchdog group Judicial Watch has filed formal Senate ethics charges against Mr. Kennedy and another member of the Judiciary Committee based on the Elaine Jones memo and other internal Democratic memos.

In complaints filed Monday afternoon, Judicial Watch accuses Mr. Kennedy and Sen. Richard J. Durbin, Illinois Democrat, of acting improperly and bringing “enormous disgrace” upon themselves and the U.S. Senate.

Mr. Kennedy “improperly and unlawfully developed and engaged in a scheme to obstruct the confirmation of Tennessee Judge Julia S. Gibbons,” wrote Judicial Watch President Tom Fitton. “Rather than allow the confirmation process to continue in the regular course, Senator Kennedy and his agents deliberately manipulated both the judicial confirmation and legal processes to achieve his partisan political goal.”

In the end, Judge Gibbons wasn’t confirmed until July 29, 2002, less than two months after the 6th Circuit ruled in a 5-4 decision to uphold the University of Michigan’s affirmative action program.

Kennedy spokesman David Smith responded with “one word: frivolous.”

Other charges filed say Mr. Durbin and his staff “improperly developed and engaged in a racially motivated scheme to obstruct the confirmation of judges at the behest of political interest groups.”

Mr. Fitton quoted from a memo written Nov. 7, 2001, by a Durbin staffer who was relaying concerns from leaders of special interest groups about Washington lawyer Miguel A. Estrada, nominated by Mr. Bush to the U.S. Court of Appeals for the District of Columbia. The groups described Mr. Estrada as “especially dangerous, because he has a minimal paper trail, he is Latino, and the White House seems to be grooming him for a Supreme Court appointment,” the memo says.

Durbin spokesman Joe Shoemaker said of the ethics complaint against Mr. Durbin: “That is an out-and-out distortion of what the memo says. The groups were opining” about the qualities of Mr. Estrada that will make him difficult to oppose for many Democrats.

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