- The Washington Times - Thursday, April 8, 2004

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.

According to the memo, Ms. Johnson had consulted on the matter with Mr. Kennedy’s chief counsel, Miss Barnes, who attended the University of Michigan Law School.

“Melody and I are a little concerned about the propriety of scheduling hearings based on the resolution of a particular case,” she wrote. “Nevertheless, we recommend that Gibbons be scheduled for a later hearing: the Michigan case is important.”

The memo was carbon-copied to five other Kennedy staffers, including one named “Mary Beth.”

According to Senate financial records from that time, the only “Mary Beth” on staff then was Chief of Staff Mary Beth Cahill, who is now running the presidential-election campaign of fellow Massachusetts Sen. John Kerry.

Although Democrats on the Judiciary Committee insist that the substance of the memos is off-limits because of the theft, they also have denied accusations that they were responsible for blocking Judge Gibbons until after the panel ruled on the affirmative-action case.

Democrats blame the delay on a monthlong hold that Sen. John McCain, Arizona Republican, reportedly had on all nominees around that time. Mr. McCain’s hold accounts for only one of the three months that Judge Gibbons waited to be confirmed, and at least two other judges were confirmed in that period.

This is not the first time that Ms. Johnson has become embroiled in a controversy over internal memos obtained by the opposing party.

In November 2001, a top staffer to Judiciary Chairman Orrin G. Hatch, Utah Republican, e-mailed an internal strategy memo to several fellow Republicans. A copy was inadvertently e-mailed to Ms. Johnson.

When several Republicans realized the error and asked her to delete the message, she replied in an e-mail: “sure. no worries.”

The Republican e-mail later appeared in the Chicago Tribune, the Boston Globe and The Washington Post.

Among other files downloaded from Democratic computers by Republicans are two pages written for Mr. Kennedy on how to handle the Republican e-mail.

In one titled “Talking Points on Misdirected Email,” staffers wrote: “Some Republicans are trying to shift the discussion from their disingenuous arguments and strategies regarding the pace of judicial nominations to how the e-mail got leaked to the press. This is ridiculous.”

Mr. Mazzella, whose group doggedly has pursued accusations stemming from the memos, said he cannot understand why Republican leaders in the Senate do not investigate the content of the memos as energetically as they investigated how the memos were obtained.

“We simply cannot understand why Republican leadership in the Senate shows no apparent concern for evidence that is stacking up like cordwood showing one of the biggest scandals in Senate history,” Mr. Mazzella said.

The leaders of several conservative judiciary groups noted that they specifically have asked Majority Leader Bill Frist, Tennessee Republican, to investigate the matter, especially because the 6th Circuit covers his home state.

Frist spokeswoman Amy Call was not familiar with the matter and did not return a phone call seeking comment.

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