December
11, 2003
The Honorable
Edward M. Kennedy
United States Senate
317 Russell Senate Office Building
Washington, D.C. 20510
Dear Senator
Kennedy:
The Center for
Individual Freedom, a nonprofit constitutional advocacy organization,
has read with great alarm and concern the April 17, 2002, memorandum
to you outlining a telephone conversation between one of your staffers
and Elaine Jones, President and Director-Counsel of the NAACP Legal
Defense and Education Fund, Inc., regarding Senate action on Judge
Julia Smith Gibbons and all other 6th Circuit judicial
nominees. In light of what appears to be unethical conduct by your
office in an attempt to influence the outcome of a pending case
before the U.S. Court of Appeals for the 6th Circuit,
we are calling on you to immediately:
-
Release
the names of all staffers named in the April 17, 2002, memorandum,
including its author;
-
Disclose
all information on activities and decisions resulting from the
April phone call and memorandum; and
-
Recuse yourself
from all Senate deliberations and votes on judicial nominees
until a full investigation, including a pending ethics complaint
filed against you, is completed.
As you know,
the Center was joined last week by several national grassroots and
civil rights organizations in filing a complaint with the Virginia
State Bar against Ms. Jones. The complaint charges that Ms. Jones
intentionally acted to manipulate the outcome of the highly publicized
affirmative action case challenging the University of Michigans
undergraduate admissions process then being considered by the U.S.
Court of Appeals for the 6th Circuit -- a case in which
she was named counsel.
Ms. Jones
intent to ensure the judicial deck was stacked in her favor is made
absolutely clear in the April 17, 2002, memorandum written to you
for your action. According to that memorandum, Ms. Jones contacted
your office and sought to delay Senate action on Judge Julia Smith
Gibbons, then an "uncontroversial" nominee to the U.S.
Court of Appeals for the 6th Circuit and all other 6th
Circuit nominees "until the University of Michigan case regarding
the constitutionality of affirmative action in higher education
is decided by the en banc 6th Circuit."
"The thinking
is," according to your staffer who authored the memorandum,
"that the current 6th Circuit will sustain the affirmative
action program, but if a new judge
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. Jones
efforts to intentionally manipulate and improperly influence the
outcome of a pending case was fully understood by no less than two
of your staffers, including the author of the memorandum who spoke
with Ms. Jones. According to the memorandum, those two staffers
were "concerned about the propriety of scheduling hearings
based on the resolution of a particular case." "Nevertheless,"
the memorandum continues, "we recommend that Gibbons be scheduled
for a later hearing: the Michigan case is important
"
Indeed, Senate
action on the confirmations of Judge Gibbons and other 6th
Circuit nominees was delayed until after that court released its
opinion upholding the University of Michigan Law Schools affirmative
action policy. The fact that Judge Gibbons was ultimately confirmed
by a 95-0 vote clearly indicates that there was not legitimate reason
for that delay.
Not clear is
the identity of those staffers who made the recommendation to you
to postpone confirmation hearings and what exact actions were or
were not taken by you and others to ensure that no new judges were
confirmed to the 6th Circuit prior to the court handing
down its decision in the Michigan case.
Therefore, in
order to secure the integrity of the U.S. Senate and our constitutional
system of separation of powers, you should immediately release the
names of all staffers involved and disclose the details of all activities
and discussions that resulted from last Aprils memorandum
and discussions with Ms. Jones regarding this matter. By doing so,
you can ensure that these staffers and possibly others can be thoroughly
questioned as part of a full investigation into this matter.
Furthermore,
you should recuse yourself from all Senate deliberations and votes
on judicial nominees until a full investigation into potential impropriety
resulting from this matter is completed.
As a senior
member of the United States Senate, you well understand the importance
of safeguarding the integrity of the institution and the rules by
which all of its members must abide. Having served on the Senate
Judiciary Committee for the majority of your career in the Senate,
which includes having served as Chairman of that committee, you
should well understand the importance of an independent judiciary.
Furthermore, having served in the U.S. Senate for more than 40 years
and having taken the oath of office to "solemnly swear to protect
and defend the Constitution" eight times, you should well understand
the importance of our system of separation of powers.
So far your
office has done nothing but dodge questions pertaining to the memoranda
and dismiss all actions that have resulted from them as "frivolous."
That response may well temporarily deflect media attention, but
the implications of the April 17 memorandum are anything but frivolous,
as acknowledged by its author therein. The American people deserve
a full investigation into this matter and your full cooperation
with such an investigation.
Thank you for
your time. I look forward to receiving your written response to
this letter.
Sincerely,
Jeffrey Mazzella
Executive
Director
|