Center Urges Senator Kennedy to 'Do the Right Thing' With Regard to Incriminating Judicial Memos

In a letter reproduced here, the Center for Individual Freedom urges Senator Kennedy to immediately release the names of all staffers named in the April 17, 2002, memorandum...

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 6^th 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 6^th 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 Michigan’s undergraduate admissions process then being considered by the U.S. Court of Appeals for the 6^th 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 6^th Circuit and all other 6^th 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 6^th 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 6^th 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 6^th Circuit nominees was delayed until after that court released its opinion upholding the University of Michigan Law School’s 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 6^th 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 April’s 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

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