Monday, November 17, 2003

Senate Democratic staffers and a judge appointed by President Carter made extraordinary efforts last year to ensure that a liberal majority sat on the federal appeals court that heard the Michigan affirmative action cases, according to internal Democratic staff memos.

Staffers for Sen. Edward M. Kennedy, Massachusetts Democrat and senior member of the Judiciary Committee, sought to delay one of President Bush’s nominees to the 6th Circuit U.S. Court of Appeals based on concerns that the new judge might strike racial preferences as unconstitutional, according to the memos obtained last week by The Washington Times.

“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,” staffers wrote in an April 17, 2002, memo to Mr. Kennedy advising him to slow the confirmation process for Tennessee Judge Julia S. Gibbons.

“The case was fixed,” Tom Fitton, president of the legal watchdog group Judicial Watch, said yesterday. “It ought to be examined by the Ethics Committee.”

After reading about the internal memos, Mr. Fitton said he wondered if there were any communications between Kennedy staffers and then-6th Circuit Chief Judge Boyce F. Martin. Judge Martin has since been accused of judicial misconduct for manipulating the makeup of the appeals-court panel that heard the case, which involved white students who said they were discriminated against by the University of Michigan’s admissions policies.

“It raises questions about whether Kennedy’s staffers were in cahoots with Judge Martin,” Mr. Fitton said. “This brings the misconduct case back to the Senate in terms of investigative leads.”

The accusations against Judge Martin came from, among others, a 6th Circuit colleague who wrote an unusual appendix to his dissenting opinion. In his dissent, Judge Danny Boggs said Judge Martin — who was appointed to the bench in 1979 by President Carter and who was the circuit’s chief judge at the time it heard the Michigan case — violated several court rules by naming himself to the panel hearing the case.

“Under this court’s rules, these cases generally would have been assigned to a panel chosen at random,” Judge Boggs wrote in his May 2002 dissent. “This was not done.”

More alarming to court watchers, however, was evidence that Judge Martin had postponed the affirmative action case until two Republican-appointed judges had retired from active duty.

According to Judge Boggs and an internal investigation by the court that followed, the 6th Circuit was first petitioned May 14, 2001. Actively serving on the court at that time were Judge Alan E. Norris, appointed by President Reagan in 1986, and Judge Richard F. Suhrheinrich, appointed by President Bush in 1990.

After “a series of decisions in contravention of our rules and policies,” Judges Norris and Suhrheinrich retired from active duty.

Eight days after Judge Suhrheinrich retired, Judge Martin referred the case to the panel. The newly constructed panel voted 5-4 to uphold the University of Michigan Law School’s affirmative-action program. The Supreme Court later upheld that decision, while striking down affirmative action in the university’s undergraduate program.

Also absent from the appeals panel that decided the case was Judge Gibbons, who had been nominated eight months earlier. Less than two months after the affirmative-action decision, the Senate confirmed Judge Gibbons.

News of the leaked documents enraged Democrats on the Senate Judiciary Committee, including Sen. Richard J. Durbin of Illinois, who called for an investigation into how the documents were released. At Mr. Durbin’s request, Capitol Police seized tapes from the Judiciary Committee’s computer servers yesterday and locked them into a Capitol Police vault.

“Other than the original paper copies of these memos, which are locked away in a file cabinet in my staff’s Judiciary Committee offices, the only other copies are stored electronically on the Judiciary Committee’s computer server in an allegedly secure file area,” Mr. Durbin said in a letter to the Senate Sergeant at Arms requesting an investigation. “Therefore it appears that the documents in question were taken without authorization and possibly illegally. This constitutes a serious breach of security and calls into question the confidentiality of Senate internal communications in both electronic and hard-copy form.”

Judiciary Committee Chairman Orrin G. Hatch, Utah Republican, agreed to store the tapes of computer activity but said no investigation would be conducted without evidence that a crime had been committed.

“Sometimes when people get their hands caught in the cookie jar, they try to divert you away from what really happened,” Mr. Hatch said yesterday. He also suggested the Democratic memos could have come from “a conscience-stricken staffer.”

Among the leaked documents were six internal memos from staffers to Mr. Durbin.

Republicans seized upon one that was written by a Durbin staffer after meeting with liberal special-interest groups to discuss which Bush nominees should be blocked.

“They also identified Miguel Estrada (D.C. Circuit) 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 staffer wrote, referring to the Washington lawyer nominated by Mr. Bush to the U.S. Court of Appeals for the D.C. Circuit. Mr. Estrada withdrew his nomination after being filibustered for eight months.

Republicans said it was evidence that Democrats opposed Mr. Estrada in part because, as a Hispanic, he could help Republicans curry electoral favor with the nation’s fastest-growing minority group.

A spokesman for Mr. Durbin dismissed such accusations, saying it was simply a list of the “dangerous positives” that made Mr. Estrada hard to oppose.

Said Manuel Miranda, Majority Leader Bill Frist’s staffer for judicial nominations: “With friends like these, Latinos don’t need enemies.”

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