From the WSJ Opinion Archives
ON THE HILL
Memogate
Why won't the Senate GOP stand up to Democratic Judiciary Committee shenanigans?
This page's scoop last November--revealing Senate Democratic strategy memos on how to defeat President Bush's judicial nominees--created quite a kerfuffle. The excerpts appeared in an editorial on a Friday. On Monday, the Capitol Police swooped down on the offices of the Senate Judiciary Committee in search of evidence of who leaked the documents. Now, nearly four months later, the Senate Sergeant-at-Arms has delivered a report confirming that 4,700 files were downloaded and that security was extremely lax on the Judiciary computers.
The facts point to the existence of an environment in which routine political advantage could be pursued by anyone with an ounce of chutzpah; but you wouldn't know that from the Democrats who cry "partisan spying," "Watergate," and even "Nazi Germany." As for Republicans, most would just like to get the story behind them--and get on with confirming judges. Yet it's hard to see how Democrats will let them when GOP Chairman Orrin Hatch professes himself to be "mortified that this improper, unethical and simply unacceptable breach of confidential files occurred."
The man at the center of the story takes a different view. Manuel Miranda avers that he committed no wrongdoing--no hacking, no ethical lapses. Until his resignation last month, he served as counsel on judicial nominations in the office of Senate Majority Leader Bill Frist. Before that he worked for Sen. Hatch. Mr. Miranda says he did not leak the memos to the Journal. He says he read some Democratic memos, passed along by a colleague, but vigorously denies any wrongdoing. The memos fell into his hands as a result of Democratic negligence, he says--the computer-age equivalent of "leaving sensitive materials on the table of the lunchroom used by both sides."
This began in June 2001, when Sen. Jim Jeffords's defection from the GOP put control of Judiciary back into the hands of the Democrats, under the chairmanship of Sen. Leahy. Mr. Leahy promptly fired the Hatch IT staff and hired his own computer techies, who neglected to erect a firewall between GOP and Democratic users of the shared Judiciary server. This made it possible, Mr. Miranda says, for any staffer to click on the "My Network Places" icon on any Judiciary computer and call up documents stored on the shared drive. Some staffers stored nothing on the shared drive; others took the precaution of setting up passwords for their files. All were advised to keep sensitive documents on their hard drives. Classified material was stored on discs and kept under lock and key.
The key point here is that Mr. Miranda wasn't the only one who knew about the computer glitch. He found out about it in June 2002, when a co-worker handed him a stack of Democratic memos. The young staffer, who has since resigned, had discovered in March or April that he could read many Democratic files on the shared drive. The Hatch IT staffer was also aware of the problem--at one point hosting a lunchtime demo for colleagues. A computer-savvy intern for GOP Sen. Charles Grassley had made the same discovery in the fall of 2001. At some point, the Leahy IT staff learned about the glitch, too, but didn't bother to fix it.
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Mr. Miranda scanned the memos looking for "information about when confirmation hearings would be held." Democrats, he says, would sometimes tell liberal interest groups weeks or even months before they informed the Republicans, to whom they usually gave one week's notice. If he had extra time to prepare, so much the better. "I wouldn't read everything," he says. "I had little time or the memos were not current. I was looking for dates. I wasn't looking for a problem." He says the memos confirmed what he already knew about the collusion between the Democrats on Judiciary and liberal interest groups such as NARAL and the NAACP.
It wasn't until the 2002 election, he says, that he began to think there was more to the memos. The first thing he noticed was that Fourth Circuit nominee Dennis Shedd's vote "was being delayed because of the North Carolina election." Then "they decided not to bring Shedd up" before the senatorial runoff election for Mary Landrieu in Lousiana. "She had run out of money and depended on the NAACP and People for the American Way. That's the first time I told myself that this goes beyond what might be viewed as normal lobbying." He began to think that the Democrats on Judiciary might be offering "a promise of campaign funding and campaign get-out-the-vote support in exchange for withholding a confirmation vote on a nominee."
The April 17, 2002, memo on the Sixth Circuit Court of Appeals (see excerpts nearby) is an example of a possible legal or ethical violation, he says. The memo explains that Elaine Jones of the NAACP Legal Defense Fund wants Sen. Kennedy to "hold off" on any nominee until the Sixth Circuit had voted on the University of Michigan affirmative action case. "Had I seen that memo I certainly would have given it to the House Judiciary Committee," which was investigating alleged judicial impropriety in the Sixth Circuit decision. "I didn't see it until you pointed it out in the Journal."
Mr. Miranda's sin here seems to be at most a misdemeanor. The Democrats, by contrast, are trampling on the Constitution with their filibuster of appeals-court nominees. Isn't that worse--by far?
Ms. Kirkpatrick is The Wall Street Journal's associate editorial page editor.
