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Did Dems Delay Confirmation To Influence a Federal Court Case?

Who will investigate possible Democratic manipulation?

The Republican appointees on the U.S. Commission on Civil Rights want to investigate whether Senate Judiciary Committee Democrats corrupted the judicial confirmation process to please a special interest group and affect the outcome of one of the most significant federal civil rights cases in decades.

The precise issue is whether Senate Democrats heeded the request of NAACP Legal Defense Fund President Elaine Jones to delay the confirmation of Bush nominee Julia Gibbons to the U.S. Court of Appeals for the 6th Circuit until after that court had decided the University of Michigan Law School affirmative action case. Gibbons’ confirmation was delayed, and the appeals court ruled in favor of Michigan’s affirmative action program by one vote. After the court made its decision, Gibbons was confirmed.

A memo written by Democratic Senate Judiciary aide Olati Johnson recorded Jones’ request for a delay and recommended that it be granted.

Civil Rights Commissioner Peter Kirsanow, a Republican, wants the commission to probe the circumstances of the delay. He planned at the commission’s May 17 meeting to direct the commission staff to begin the first phase of an investigation. But ultra-liberal commission Chairwoman Mary Frances Berry–a Democratic appointee–abruptly canceled the meeting.

Berry herself serves on the board of the NAACP Legal Defense Fund, which adds another intriguing aspect to the case.

Johnson’s memo provides “very damning evidence that the judicial confirmation process had been manipulated,” Kirsanow said after the meeting was canceled. He explained that he and the three other Republican commissioners had asked the commission staff director to look at the issue. “But we got no substantive response to that,” he said. He then planned at the cancelled meeting to frame a motion that would have forced the staff to justify its failure to respond.

The commission has four Republicans and four Democrats and is often deadlocked. But Chairwoman Berry’s association with the NAACP could tilt the balance to Republicans in this case. “I was going to seek the recusal of the chair because she had an evident conflict of interest serving on the board of the NAACP Legal Defense Fund,” said Kirsanow.

Johnson’s April 17, 2002, memo surfaced as part of the “Memogate” scandal, in which Republican Judiciary Committee aides downloaded documents that Democratic aides placed onto computer files that were accessible to all committee staff. “Elaine [Jones] would like the [Judiciary] Committee to hold off on any 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,” says the memo, which Johnson wrote to Sen. Ted Kennedy (D.-Mass.). “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.” The memo then recommended that “Gibbons be scheduled for a later hearing.”

At last week’s scheduled meeting of the Civil Rights Commission, Berry suddenly declared she was canceling the session because all four Republican appointees, who were traveling from out of town, were ten minutes late. “Commission meetings start late all the time,” said Republican appointee Abigail Thernstrom. “Sometimes the chair is late and we wait for her.” The four Republican members went to Berry’s office to ask her to reconvene the meeting, but she refused.

“We plan to bring these issues up at our June meeting,” said Kirsanow. Commission Vice Chairman Cruz Renoso, a Democrat, said he and Berry would welcome the discussions in June. “The chair indicated on the record that we would deal with those issues at the next meeting,” he said.

If action was in fact taken to delay the confirmation of Gibbons to affect the outcome of the Michigan case it may have violated Senate ethics rules. But then-Judiciary Chairman Pat Leahy (D.-Vt.) did not delay Gibbons hearing as recommended in the memo. He held it as originally scheduled on April 25, 2002, and then allowed his committee to report her nomination to the full Senate on May 2. Gibbons’ confirmation was then stalled on the Senate floor, where then-Senate Majority Leader Tom Daschle (D.-S.D.) controlled the timing of all votes. She was finally confirmed July 29, 2002, more than two months after the 6th Circuit decided the Michigan case.

Leahy spokeswoman Tracy Schmaler blamed the delay in confirming Gibbons on Sen. John McCain (R.-Ariz.), who she said had placed a blanket hold on all confirmations in an effort to force President Bush to name Democrat Ellen Weintraub to the Federal Election Commission. McCain’s spokesperson did not answer questions from HUMAN EVENTS about whether this was true or not. The offices of Senate Majority Leader Bill Frist (R.-Tenn.) and Republican Conference Chairman Rick Santorum (R.-Pa.) did not respond to questions about whether Senate Republicans would like to see the circumstances around Gibbons’ confirmation investigated as the Republicans on the U.S. Civil Rights Commission propose.

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Mr. D'Agostino, former associate editor of HUMAN EVENTS, is vice president for Communications at the Population Research Institute.

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