REVIEW & OUTLOOK
Senate Inquisition
The real scandal is what's in the Democratic memos on judges, not who leaked them.
A man from the U.S. Senate's Sergeant-at-Arms Office called this week, asking us to give up the name of one of our sources. A formal probe is under way to discover how last November we got our hands on Democratic strategy memos on how to defeat President Bush's judicial nominees. We politely told the gentleman to take a hike.
But we have a question of our own: Why are Senate Republican leaders, specifically Judiciary Chairman Orrin Hatch and Majority Leader Bill Frist, cooperating with this vindictive little inquisition against their own employees? The scandal is what is in the memos, not how they were leaked. Yet you'd never know that from the way Senators Hatch and Frist have been rolling over for the same Democrats who have been treating them with contempt the past three years.
The memos--which we first reported and can now be read at www.fairjudiciary.com--show the extent to which liberal interest groups are micromanaging the Democrats' opposition to Mr. Bush's judicial picks. That's not exactly a news flash. But the details are pretty astonishing and expose the opposition for the cynically partisan, and sometimes race-baiting, exercise it is. As one memo to Illinois Senator Dick Durbin put it, Miguel Estrada had to be defeated because "he is Latino."
And there may be worse. We couldn't help but note the announcement this month that Elaine Jones is resigning as head of the NAACP Legal Defense Fund. Ms. Jones is the subject of one of the most eye-popping of the leaked documents: an April 17, 2002, memo to Senator Ted Kennedy describing her request that the Democrats on Judiciary "hold off" confirming nominees to the Sixth Circuit Court of Appeals until the University of Michigan affirmative action case is decided.
At the time Ms. Jones made her appeal, she was lead counsel to a group of Michigan students who were parties to the case--which is to say, she had a direct personal interest in what the court decided. Also at that time, five nominations were pending for Sixth Circuit openings and Ms. Jones was worried that a Bush appointee would tilt the balance against her clients. All the nominations were for slots designated as judicial emergencies.
To put it another way, Democrats on Judiciary were being asked to delay confirmations for a desperately understaffed court not because the nominees were unqualified but because of how they might rule in a particular case. Now, that's "politicizing" the judiciary.
The Virginia State Bar is pursuing a complaint that Ms. Jones violated the bar's Rules of Professional Conduct by improperly seeking to influence the outcome of a case. Her response to the bar's initial inquiry is due soon. A spokeswoman says Ms. Jones's decision to step down from the NAACP Legal Defense Fund has nothing to do with the inquiry, but the timing is nothing if not coincidental.
Meanwhile, the Sergeant-at-Arms probe is into its third month and appears to be focusing on a luckless staffer who denies doing anything wrong. Judging from the questions our caller asked, the preferred scapegoat is Manuel Miranda, a lawyer who works for Mr. Frist and formerly worked for Mr. Hatch. Mr. Miranda has been put on leave and we keep hearing he is in danger of losing his job.
As for the leaks, it's hard to see how any Senate rule or ethic was breached. The memos were stored on a shared computer network used by Judiciary staffers of both parties according to a design put in place by Democrats when they took control of the committee. Democrats neglected to erect a firewall or password-protect their documents, and in any case staffers were told to keep confidential information on their hard drives. The documents aren't classified and while leaking them may be political hardball, what is the definition of denying appellate judges a floor vote for the first time in U.S. history?
This internal Senate show trial wouldn't even be taking place without the approval of Senators Hatch and Frist, who are showing more tenacity investigating their own staff than they are trying to get judges past obstructionist Democrats. Mr. Hatch has a long history of dancing to Democratic demands. But his fellow Senate Republicans might keep in mind the message they'll be sending to their own staff if Mr. Miranda's scalp gets pinned to the wall for the sake of phony political appearances.
