Affirmative-action case rigged?

Newly discovered internal Democratic staff memos raise the question of

whether one of the most significant rulings on affirmative action in a

quarter-century was rigged.

According to the memos obtained by the Washington Times, staffers for

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Sen. Edward Kennedy, D-Mass, who is a senior member of the Senate

Judiciary Committee, sought to delay one of President Bush's nominees to the

6th Circuit U.S. Court of Appeals specifically to affect the outcome of the

then-pending affirmative-action case involving admissions at the University of

Michigan.

Three white students filed a reverse discrimination case against the university's law school where some minority students are admitted to

meet percentage targets, while other applicants with higher grades and better

scores get passed over. Under the school's affirmative-action program, African American, some Hispanic students and Native American students applying for admission receive 20 points out of a maximum 150, soley based on race. In comparison, applicants earning perfect scores on standardized tests such as the SAT get only 12 points.

"The thinking is that the current 6th Circuit will sustain the affirmative

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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," staffers wrote in an April 17, 2002, memo to

Kennedy advising him to slow the confirmation process for Tennessee Judge

Julia S. Gibbons, reports the Washington Times.

If Kennedy followed the advice, it appears he was successful. The court

ruled 5-4 to uphold the university's admissions program at the law school.

Gibbons was confirmed weeks later, despite having been nominated eight

months earlier.

"The case was fixed," Tom Fitton, president of the legal watchdog group Judicial Watch, told the Times, upon learning about the memos. "It ought to be examined by the Ethics Committee."

Last July, the United States Supreme Court upheld the court's decision but restricted the affirmative-action plan to the law school, eliminating preferences in undergraduate admissions.

A relieved University of Michigan President Mary Sue Coleman insisted "racial diversity" was important for classroom discussion and argued that doing away with their system would have meant "turning back the clock on civil rights." Writing in the majority opinion, Justice Sandra Day O'Connor forecast such preferences would likely be unnecessary in 25 years, but they're needed now.

The contentious 5-4 ruling sparked nationwide debate over affirmative action. President Bush even waded into the controversy, slamming the use of "quotas."

"At their core, the Michigan policies amount to a quota system that unfairly

rewards or penalizes prospective students based solely on their race," Bush

said. "Our Constitution makes it clear that people of all races must be treated

equally under the law."

The revelation of the memos deepens suspicions over the pivotal appeals-court ruling that paved the way for the justices to weigh in on the hot-button issue. The Times reports then-6th Circuit Chief Judge Boyce Martin has been accused of judicial misconduct for manipulating the makeup of the panel that heard the case. The allegations arose in the dissenting opinion written for the ruling. Judge Danny Boggs said Martin violated court rules by naming himself to the panel hearing the case.

"Under this court's rules, these cases generally would have been assigned to a panel chosen at random," Boggs wrote in his May 2002 dissent. "This was not done."

Other evidence suggested Martin – who was appointed to the bench in 1979 by President Carter – further stacked the deck by postponing the affirmative-action case until two Republican-appointed judges had retired from active duty.

According to the Times, Fitton questions whether there were communications between Kennedy staffers and Martin.

"It raises questions about whether Kennedy's staffers were in cahoots with Judge Martin," the paper quotes Fitton as saying. "This brings the misconduct case back to the Senate in terms of investigative leads."

Six other internal memos leaked to the Times and published by the Wall Street Journal Friday were written by staffers to Sen. Richard Durbin, D-Illinois.

One was written following a meeting with liberal special-interest groups convened to discuss which Bush nominees should be blocked.

"They also 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," the staffer wrote, referring to the Washington lawyer nominated by Bush to the U.S. Court of Appeals for the D.C. Circuit. Estrada withdrew his nomination after being filibustered for eight months.

Durbin has called for an investigation into how the documents were released, according to the Times.

The revelation of possible Democratic political shenanigans underlying the confirmation of Judge Gibbons follows the showdown over three other Bush judicial nominees in the Senate last week. Republicans staged an unsuccessful 39-hour talkathon to counter Democratic filibusters and force a vote on the nominations of Texas judge Priscilla Owen and California judges Carolyn Kuhl and Janice Rogers Brown.

Following the conclusion of the round-the-clock debate, Republicans and Democrats traded barbs over the tactic of blocking nominees. Sen. Lindsay Graham, R-S.C., accused Democrats of using Senate rules "in an unconstitutional manner" because all three nominees were approved by the Senate Judiciary Committee and had enough bipartisan support to get the simple majority in a full-Senate vote needed to be confirmed.

Democrats countered this was just business as usual and argued Republicans had blocked far more of President Clinton's judicial nominations.

WorldNetDaily reported that during a post-debate press conference, Kennedy referenced Bush's outstanding judicial nominees as "right-wing turkeys" and "Neanderthals."

He told reporters the Republicans' efforts to highlight Democrat obstructionism failed and said Democrats would "continue to resist any Neanderthal that is nominated by this president."

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