Memogate
Why
won’t the Senate GOP stand up to Democratic Judiciary Committee shenaningans?
BY MELANIE KIRKPATRICK
Friday, March 5, 2004 12:01 a.m. EST
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.
Mr. Miranda maintains
there was nothing wrong with reading the memos. The documents were neither
classified nor confidential. Sen. Ted Kennedy–who compared the leaks
to Watergate–once shared this view. Two more Democratic memos surfaced
yesterday–Mr. Miranda said he found them Wednesday night–including talking
points for Mr. Kennedy on a Hatch staff memo that had inadvertently been
e-mailed to a Kennedy staffer. “There was no impropriety as the information
sent to her was not confidential or privileged information,” the
memo reads.
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.
Democratic
Staff Strategy Memos From the Senate Judiciary Committee
Nov. 6, 2001/To: Senator
Dick Durbin
“You are scheduled to meet with leaders of several civil rights organizations
to discuss their serious concerns with the judicial nomination process.
The leaders will likely include: Ralph Neas (People For the American Way),
Nan Aron (Alliance for Justice), Wade Henderson (Leadership Conference
on Civil Rights), Leslie Proll (NAACP Legal Defense & Education Fund,
Nancy Zirkin (American Association of University Women), Marcia Greenberger
(National Women’s Law Center), and Judy Lichtman (National Partnership).
. . .
“. . . The primary
focus will be on identifying the most controversial and/or vulnerable
judicial nominees. The groups would like to postpone action on these nominees
until next year, when (presumably) the public will be more tolerant of
partisan dissent.”
Nov. 7, 2001/To: Senator
Durbin
“The groups singled out three–Jeffrey Sutton (6th Circuit); Priscilla
Owen (5th Circuit); and Caroline [sic] Kuhl (9th Circuit)–as a potential
nominee for a contentious hearing early next year, with a [sic] eye toward
voting him or her down in Committee. They also identified Miguel Estrada
(D.C. Circuit) as especially dangerous, because he has a minimal paper
trail, he is Latino, and the White House seems to be grooming him for
a Supreme Court appointment. They want to hold Estrada off as long as
possible.”
April 17, 2002/To:
Senator [Ted Kennedy]
“Elaine Jones of the NAACP Legal Defense Fund tried to call you today.
. . . Elaine would like the committee to hold off on any 6th Circuit nominees
until the University of Michigan case regarding the constitutionality
of affirmative action is decided by the 6th Circuit. . . . The thinking
is that the current 6th Circuit will sustain the affirmative action program,
but if a new judge with conservative views 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.”