- The Washington Times - Thursday, March 18, 2004

As the dust settles in the Judiciary Committee fuss over Republican snooping into Democrats’ memos, several legal scholars said yesterday they were shocked by a memo showing staffers in Sen. Edward M. Kennedy’s office plotting to manipulate one of the most significant court cases in recent years.

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

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.

Judge Gibbons waited more than twice the average time of other nominees before being confirmed July 29, 2002, after the 6th Circuit voted 5-4 to uphold the affirmative action program.

“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.”

Kennedy spokesman David Smith declined to comment on the memo, saying, “I don’t feel the need to comment on a stolen memo that I don’t even know the senator saw.”

Mr. Smith said there is no evidence that Mr. Kennedy or any other Democrat held up Judge Gibbons’ nomination and “I just don’t see what the controversy is.”

But an analysis of hearing dates and confirmation dates conducted by The Washington Times shows 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.

“This is certainly not what the Framers intended when they gave the Senate the powers of confirmation,” Mr. Turley said. “The fact that this type of discussion occurred at all is outrageous.”

The only legal scholars contacted by The Washington Times 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.

“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.”

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.”

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