Silence: Kennedy won’t discuss court-rigging suggestion

Someone in Sen. Ted Kennedy’s office has recommended that the senator yield to a request that would have rigged court cases. The senator is determined to conceal the truth about it — perhaps because he went along with the recommendation.

The recommendation came in the form of a memo. In it, the staffer recommended that Kennedy help stall the confirmation of judges to the 6th Circuit Court of Appeals until after the court had disposed of certain cases.

Kennedy was in a position to do that by virtue of his membership on the Senate Judiciary Committee, which holds hearings on judicial nominations.

Mucking around with nominations to allow certain cases to be heard by a friendly panel is a corruption of the constitutional process of judicial appointments. Furthermore, it amounts to rigging trials just as surely as bribing jurors does.

That is not mere hyperbole. It is the opinion of some of the most distinguished law professors in this country. They were contacted by a Washington Times reporter, Charles Hurt.

He asked them to comment on a memo in which an aide suggested to Kennedy that he fulfill a request by Elaine Jones, who represented parties involved in the case involving affirmative action in the University of Michigan’s admissions policy. Ms. Jones, president and director-counsel of the NAACP Legal Defense and Education Fund, had asked secretly that the nominations be stalled so her clients might have a better chance of winning.

The opinions of some of the law professors were posted on the Internet by the Center for Individual Freedom. Here are samples:

Professor Ronald Rotunda of George Mason University, one of the country’s leading authorities on legal ethics: “My jaw dropped when I heard that one. It’s very troubling.”

Professor Jonathan Turley of the Georgetown University Law Center: “Wow! It raises very serious questions about propriety. On its face, there is an element of complicity and dishonesty. This is certainly not what the Framers intended when they gave the Senate the power of confirmation. The fact that this kind of discussion occurred at all is outrageous.”

Professor Douglas Kmiec of Pepperdine University called the effort “panel-stacking” and said, “It assumes that the law is equivalent to politics. It also assumes that it is perfectly licit to get a favorable outcome by basically rigging the process.”

Two law professors withheld criticism, Hurt said. They were Cass R. Sunstein of the University of Chicago, and Lawrence H. Tribe of Harvard, both of whom are Democratic activists.

Kennedy won’t say anything, either. Who was the staffer who wrote the memo? Was he fired or, at least, informed that his recommendation was inappropriate? Is it unusual for Ms. Jones to make suggestions on Kennedy’s reaction to judicial nominations? Have others tried to influence the outcome of court cases by rigging the courts? Is this the reason that Kennedy has opposed so many nominees in the last three years?

These questions go unanswered.

Published in Editorials on April 2, 2004 12:01 PM