Democrat
Memogate: Kennedy Stonewalling
On March 19,
Charles Hurt of The Washington Times produced one of those
enterprising news stories that restore credit to an increasingly
lazy profession.
Hurt asked a
group of prominent law professors about the now-notorious staff
memo written to Senator Ted Kennedy. That would be the memo recommending
that Senator Kennedy fulfill a request from Elaine Jones of the
NAACP Legal Defense Fund to stall the confirmation of judges to
the U.S. Court of Appeals for the 6th Circuit until after the University
of Michigan affirmative action case was decided by that court.
Heres
what the law professors said to Hurt:
Professor Ronald
Rotunda of George Mason University, and one of the countrys
leading authorities on legal ethics, said, "My jaw dropped
when I heard that one. Its very troubling."
Professor Jonathan
Turley of the Georgetown University Law Center said, "Wow!
It raises very serious questions about propriety. On its face, there
is an element of complicity and dishonesty. This is certainly not
what the Framers intended when they gave the Senate the power of
confirmation. The fact that this kind of discussion occurred at
all is outrageous."
Professor Douglas
Kmiec of Pepperdine University, who called the effort "panel-stacking,"
said, "It assumes that the law is equivalent to politics. It
also assumes that it is perfectly licit to get a favorable outcome
by basically rigging the process."
According to
Hurt, "The only legal scholars contacted by The Washington
Times who did not condemn the Kennedy memo were University of
Chicagos Cass R. Sunstein and Harvard Universitys Lawrence
H. Tribe, two law professors who are widely credited with developing
the current Democratic strategies to block Republican nominees."
Now note carefully
what Professor Sunstein told Hurt: "I dont want to comment
on stolen materials. Even if there is something bad in there, it
would be improper of me and possibly of you to comment
on them."
Sunstein obviously
got the Kennedy/Durbin/Schumer/Leahy talking points
all the
way out in Chicago. The memo was "stolen," thus it would
be "improper" to comment
even if there is something
bad in there. It would even be improper for Hurt to comment.
While we frequently
disagree with Professor Sunstein, we have, up until now, at least
respected him. Even the Pickle Report has dispelled the canard that
the memo was "stolen" or resulted from "computer
hacking."
Perhaps the
good professor has forgotten the Pentagon Papers case. The Pentagon
Papers were official government documents, which really were stolen
and then given to The New York Times. They were even classified
(although probably for no good reason at the time).
The U.S. Supreme
Court told The New York Times to publish away, have a field
day. The New York Times, and virtually every other news organization
in the civilized world, not only published, but commented for years.
The Pentagon
Papers case turned on prior restraint, implicating serious national
security issues, no matter how inappropriately construed.
The Kennedy
memo is now a matter of public record, however it got there. What
it says is a big old no no. You dont fix legal cases in the
United States. You dont if youre the Mafia. You dont
if youre the NAACP. You dont if youre in the U.S.
Senate. You dont fix cases by bribing judges, intimidating
witnesses or threatening jurors. You dont fix cases even through
the staggeringly audacious method proposed by Ms. Jones, far more
contemptible than its more traditional manifestations, because this
one originated with a counsel in a case who then enlisted aides
to a U.S. Senator.
We understand
Professor Sunsteins embarrassment at what his liberal cohorts
in the Senate have been doing (a lot more than what is in the Kennedy
memo, one of the few involving judicial confirmations made public).
He just signed on to help with a bit of ideological filibustering.
Not this.
Charles Hurt
asked Senator Kennedys office to comment on the memo. Kennedy
spokesman David Smith said, "I dont feel the need to
comment on a stolen memo that I dont even know the Senator
saw."
A few subpoenas
might get some people feeling the need to comment. But that seems
unlikely, at this point. Investigating the activities of the NAACP
gets one labeled a racist. Investigating Senator Kennedy could expose
a much larger cesspool. The sounds of silence are deafening.
Note that Smith
says, "I dont even know the Senator saw [the memo]."
He works for the guy; he could go down the hall and ask. Except
he cant.
If Kennedy denies
seeing the memo, and then a record pops up that he did, hes
compounding the issue. If he admits that he did see it, that begs
a dozen additional questions, every one of them a potential trap.
Smith told Hurt
that there is no evidence that Kennedy or any other Democrat held
up the confirmation of the nominee to the Sixth Circuit. The
Washington Times went to the calculators. In a two-year period,
only four judges (out of 101) waited longer. Three of those four
were "controversial." The nominee for the Sixth Circuit,
eventually confirmed by a unanimous vote, was not, as admitted by
Senator Kennedys staffer in the memo.
Thats
not evidence. Its circumstance. But somewhere in the delay
between a memo that demonstrated intent to stack a judicial panel
and an unusually long confirmation that accomplished exactly what
was intended, there may be evidence if anyone were to actually look
for it.
As a legal matter,
Senator Kennedy has the right to remain silent. The right against
self-incrimination is among the strongest of our Constitution, of
our system of justice. It is absolute. Just as stonewalling is absolutely
the first refuge of a scoundrel.
[Posted
March 25, 2004]
|