'Memogate' opens window on judiciary fights

As early as October 2001, a GOP nominations clerk on the Senate Judiciary Committee made a startling discovery: He could - easily, it turns out - tap into the personal files of Democratic staffers. So, he did.

It started with a search for "Judge Charles Pickering," a controversial nominee up for a seat on the Fifth Circuit.

Some 18 months later, he had downloaded more than 4,000 files laying out the Democrat's backroom strategy on the toughest partisan fight in Congress.

The affair of the purloined Senate Judiciary files - now headed to the Justice Department for possible criminal investigation - is opening a window into how close ties between lawmakers and outside interest groups may shape judicial-nomination battles. Republicans call it "Memogate." Democrats call it "Hackergate."

In all, some 4,670 Democratic staff documents were lifted from fall 2001 to spring 2003, according to a report released last week by the Senate Sergeant at Arms. They were subsequently passed on to Manuel Miranda, the former counsel for the Senate Judiciary Committee. Nineteen of the Democratic staff memos later appeared on the website of the Coalition for a Fair Judiciary, a conservative group committed to confirming "constitutionalist" nominees.

Mr. Miranda says that his actions were not a crime. Unlike the memos on Anita Hill leaked to the press during the Clarence Thomas confirmation, he says these were neither "classified" nor "confidential" by Senate rules. "In addition, functionally, the computer server literally 'served' them to Republican staffers; no hacking, no stealing," wrote Mr. Miranda in the National Review last week.

A bipartisan majority on the Senate Judiciary Committee did not agree. Last week, they called for the Department of Justice to take up the investigation. Three Republicans joined all nine Democrats on the panel in requesting the appointment of a special prosecutor.

But at the same time, attention could revert back to the disclosures themselves.

"Just as the Pentagon papers helped the nation understand more clearly about defense policy, the contents of these memos show manipulation of the judicial confirmation process ... even a veto over the process," says Sen. John Cornyn (R) of Texas, a member of the committee.

One of the memos, later published on the Internet, urges Senate Democrats, who then controlled the committee, to hold an unusual second hearing on Pickering, to give opposition groups "adequate time to research him fully." They did.

Another identified Miguel Estrada as an "especially dangerous" nominee for the US Court of Appeals for the D.C. Circuit, because "he has a minimal paper trail, he is Latino, and the White House seems to be grooming him for a Supreme Court appointment." After an unprecedented two-year Democratic filibuster, Estrada withdrew from consideration last fall.

The most striking of the published memos includes a request by the general counsel of the NAACP to not move nominees for the Sixth Circuit until after University of Michigan affirmative action cases had been decided. Nominees were delayed, but Democrats on the Judiciary Committee say it was not because of the memo.

Activists say the case reveals how closely senators on both sides of the aisle are tied to powerful interest groups. Conservative groups, for example, have been deeply involved in the memo dust-up, both in disseminating the memos and defending those who lifted them.

"What these papers tell you about the [judicial nominations] process is that a lot of organizations try to influence and speak to their allies on the Hill. Everybody does it," says Herman Schwartz, a law expert at American University and a former Democratic Judiciary committee staffer.

Liberal activists say an all-out lobbying fight is warranted, citing the risk of a "right-wing takeover" of US courts. Conservatives complain of "judge-shopping."

"It plays directly into the conception of judging that the Democrats have been putting forth: Namely, that judges are no different than politicians, so it's important to get your pols on the court," says Roger Pilon of the libertarian Cato Institute.