WASHINGTON – Frustration is running high among critics angry that attention paid to a batch of Democratic memos — including one describing special interest influence in the confirmation process of President Bush's judicial nominees — has focused more on the leaks than the potentially explosive content of the documents.
"I can't tell you why — I sit here and pound my head on the desk — I mean, look at the content of these memos," said Jeffrey Mazzella, head of the Center for Individual Freedom (search).
But some Democratic aides close to the dispute say attention should be focused on identifying the individuals who accessed the pages and handed them out to the press.
“The focus is appropriately focused on the breach of security,” said Joe Shoemaker, spokesman for Sen. Richard Durbin, D-Ill., whose staff wrote several of the controversial memos.
Shoemaker noted that the Senate Judiciary Committee stores in its computer files “intimate details” of every nominee confirmed by the committee. He said that downloading the files is akin to stealing and worthy of punishment.
Judiciary panel Chairman Orrin Hatch, R-Utah, has already triggered a probe into the source of the leaks. The Senate sergeant-at-arms has been given the authority to investigate, and has hired counter-espionage and anti-terror expert, David Lang, to root out the leakers, who many believe tapped into the panel's shared computer server to extract the memos.
Hatch announced late last month that he has put one unnamed staff member on administrative leave in connection with the leaks, pending Lang's findings.
"I was shocked to learn that this may have occurred," Hatch said in a Nov. 25 press conference. A spokeswoman for Democratic ranking member Sen. Patrick Leahy of Vermont said he was "saddened and disappointed" with the breach of his colleagues' privacy.
But critics wonder why Hatch's disciplinary action has made all the headlines, while the substance of the memos has become a mere afterthought.
"It's beyond my ability to understand why the process seems to be more important here than the content," said Kay Daly, head of Coalition for a Fair Judiciary (search), which has made the full memos available on FairJudiciary.com.
Released to the Wall Street Journal in November, the memos date back to 2001 and reflect an ongoing discussion among Democratic staffers and senators regarding how they planned to stall, derail and ultimately kill the nominations of several of President Bush's judicial nominees, who were referred to in one missive as "Nazis."
The memos also suggest the intimate role special interest groups like the National Association for the Advancement of Colored People (search) and People for the American Way (search) had in plotting the nominees' failure, with staffers intimating that the groups' opinions held sway with Judiciary Committee Democrats in determining hearing schedules and strategy.
Worst of all, say critics, is an April 17, 2002, memo from staff to Sen. Ted Kennedy, D-Mass., endorsing a personal request by NAACP National Defense League President Elaine Jones to stall the confirmation of conservative Judge Julia Gibbons (search) to the 6th Circuit Court of Appeals until that panel ruled on the University of Michigan affirmative action case.
"Elaine [Jones] will ask that no 6th Circuit nominee be scheduled until after the Michigan case is decided," wrote a staff member — whose name was redacted — in a memo to Sen. Kennedy.
"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 the 6th Circuit rules, to review the case and vote on it," the memo reads.
Though "concerned about the propriety of scheduling hearings based on the resolution of a particular case," the staffer nevertheless recommended that Jones be told they will indeed take up another judge's confirmation before Gibbons'.
On July 29, two months before Gibbons' scheduled confirmation hearing, the 6th Circuit Court ruled 5-4 to uphold the school's affirmative action program.
After reviewing the memos, the Coalition for a Fair Judiciary, the Center for Individual Freedom, the Congress of Racial Equality (search) and Project 21 (search), filed a Dec. 4 grievance against Jones with the Virginia State Bar.
"We don't file grievances with the bar lightly," said Daly. "This was a case that affects millions of people and what [Jones] was attempting to do was jury-rig the process and put her thumb on the scales."
Jones' spokespeople did not return requests for comment.
Many of the memos refer to the handful of liberal-leaning organizations dedicated to scuttling Bush's nominees as "the groups" and indicate their particular concern with stopping the confirmation of Honduran-born attorney Miguel Estrada (search) to the D.C. Circuit Court of Appeals, a frequent stepping-stone to the Supreme Court.
"[The groups] 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," said one Nov. 7, 2001, memo to Sen. Durbin. "They want to hold off Estrada as long as possible."
Estrada dropped his bid for the judgeship in September, more than two years after his nomination and following seven failed attempts to break Democratic Senate filibusters.
Hatch's office said that it does not plan to investigate the content of the leaked memos, and an official with one of the organizations named in the memos said they aren't sensational, but the leaks are egregious.
"Going back decades, interest groups on both sides of the political aisle have been actively engaged in sharing information with senators and their staff about specific nominees," said Nan Aron, president of the Alliance for Justice.
Daly scoffs at the suggestion.
"I could never imagine trying to affect the outcome of a case," she said. "We never order senators around."
Sen. Lindsey Graham, R-S.C., said in a recent statement that if someone feels violated by the leaks, it should "be dealt with," but neither should the substance of the documents be ignored.
"I will be their worst nightmare when it comes to what these memos said," Graham said.