Posted on 12/05/2003 2:36:03 PM PST by jmcclain19
The Memos and Ms. Jones: The New York Times editorial board has finally discovered the Senate Judiciary Committee “collusion memos” detailing Democratic and liberal interest group opposition to Bush’s judicial nominees. Though, as one might expect, the Times is more concerned about the manner in which the memos were disclosed – they were allegedly pilfered by a Republican staffer (an act that, if illegal, would justify prosecution) – than their content. As a result, the Times missed the big story here. No, not the confirmation that Democrats opposed Miguel Estrada because he is a Hispanic. (One memo noted “civil rights leaders” viewed Estrada to be “especially dangerous” because, among other things, “he is Latino” and, if confirmed, would be a likely Supreme Court pick.) Rather, it is the suggestion that lawyers in the Michigan affirmative action case sought to alter the outcome of the litigation by stalling the confirmation of judges to the U.S. Court of Appeals for the Sixth Circuit.
At the time, the Michigan affirmative action case was up for en banc review on the Sixth Circuit, in which all active judges on the court would participate. Apparently, under Sixth Circuit rules, were a new judge to have been confirmed then, the new judge would have been able to participate as well, and perhaps swing the result – at least, this was the concern reportedly voiced by Elaine Jones of the NAACP Legal Defense Fund. According to one of the memos written to Senator Ted Kennedy,
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 in higher education is decided by the en banc 6th circuit. This case is considered the affirmative action case most likely to go to the Supreme Court. Rumors have been circulating that the case will be decided in the next few weeks. 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 judge will be able, under 6th circuit rules, to review the case and vote on it.
The author the memo went on to note his/her concern about “the propriety of scheduling hearings based on the resolution of a particular case,” but that “Elaine will ask that no 6th circuit nominee be scheduled until after the Michigan case is decided.” The final recommendation was to seek a temporary delay for a proposed hearing on Sixth Circuit nominee Julia Gibbons, herself an uncontroversial nominee, so long as there were other “uncontroversial” nominees for the committee to consider.
Why might this be a big deal? Because it is generally considered a big no-no for a lawyer to seek to alter the outcome of a case by tampering with the neutrality of the judicial process, such as by seeking to surreptitiously alter the composition of a judicial panel. It is an especially big no-no when a lawyer attempts to do this in her own case. That’s relevant here because the NAACP Legal Defense Fund intervened in the Michigan case.
While the Times missed this angle, several conservative groups did not. These groups are filing a formal ethics complaint against Ms. Jones with the Virginia State Bar, the Washington Times reports. Does their complaint have merit? Perhaps in principle, but I would be surprised to see Ms. Jones sanctioned by the Virginia Bar. For one, the underlying allegation may be untrue, and could well be difficult to prove. For another, it seems that there is a substantive difference between trying to alter the outcome of a case by, say, manipulating judicial selection on a given court so as to obtain a favorable judge, and seeking legislative intervention on behalf of one’s client. The former is prohibited, the latter is allowed. Finally, any sanction would be seen as highly political given the nature of current fights over judicial nominations, so even if the claim has merit, I would not expect more than a stern letter noting the appearance of impropriety created by Ms. Jones’ actions. Thus, in my view, Jones alleged actions – while unseemly and, in my view, inappropriate – are unlikely to result in any formal action.
Groups Claim NAACP Rigged Michigan Affirmative Action Case
I'll second that with glee!
Only if you are Mr. Shrimp!
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