Judicial Nominations

What About Those E-mails?

Background on Senator Leahy's line of questioning about allegedly stolen e-mails and documents from the Senate Judiciary Committee.

|The Volokh Conspiracy |

In today's Supreme Court confirmation hearing, Senator Pat Leahy (D-VT) asked Judge Brett Kavanaugh about whether he had been aware that a Republican Senate Judiciary Committee, with whom he had worked on judicial nominations during the Bush Administration, had surreptitiously obtained confidential documents from Committee's Democratic staff. Senator Leahy is apparently concerned that Judge Kavanaugh was not fully forthcoming on this matter during his testiony at the confirmation hearing on his nomination to the U.S. Court of Appeals for the D.C. Circuit.

The documents allegedly helped the Bush White House and Senate Republicans counter Senate Democrats' efforts to block President Bush's judicial nominees. Further, the eventual disclosure of these documents proved quite embarrassing to some Senate Democrats and resulted in a referral to the Department of Justice. Among other things, the documents revealed that Senate Democrats were particularly intent on blocking the confirmation of Miguel Estrada to the U.S. Court of Appeals for the D.C. Circuit because he is hispanic and would be an attractive Supreme Court nominee. Others revealed that outside activist groups sought to delay the confirmation of judges with an eye toward affecting the outcome of at least one pending case.

This 2004 Christian Science Monitor article provides a good overview of the events in question. Here's an excerpt:

In all, some 4,670 Democratic staff documents were lifted from fall 2001 to spring 2003, according to a report released last week by the Senate Sergeant at Arms. They were subsequently passed on to Manuel Miranda, the former counsel for the Senate Judiciary Committee. Nineteen of the Democratic staff memos later appeared on the website of the Coalition for a Fair Judiciary, a conservative group committed to confirming "constitutionalist" nominees. . . .

One of the memos, later published on the Internet, urges Senate Democrats, who then controlled the committee, to hold an unusual second hearing on Pickering, to give opposition groups "adequate time to research him fully." They did.

Another identified Miguel Estrada as an "especially dangerous" nominee for the US Court of Appeals for the D.C. Circuit, because "he has a minimal paper trail, he is Latino, and the White House seems to be grooming him for a Supreme Court appointment." After an unprecedented two-year Democratic filibuster, Estrada withdrew from consideration last fall.

The most striking of the published memos includes a request by the general counsel of the NAACP to not move nominees for the Sixth Circuit until after University of Michigan affirmative action cases had been decided. Nominees were delayed, but Democrats on the Judiciary Committee say it was not because of the memo.

This 2004 Boston Globe story provides additional context, and this Jack Shafer column suggests the Globe coverage was overheated. In this article, Dahlia Lithwick calls the controversy a "gnarly sausage"

For those interested in seeing some of the purloined memos, a sampling should be accessible here.

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  1. “Senate Democrats were particularly intent on blocking the confirmation of Miguel Estrada to the U.S. Court of Appeals for the D.C. Circuit because he is hispanic”

    This should surprise no one. The Democrat party is more racist than the Republican party, and sees minorities as useful pawns in their quest for power.

    And they haven’t been this angry since the Republicans took their slaves away.

    1. Anyway, sorry for the tangential and off-topic post. This is about Democrats now plotting to derail a different nominee, by fomenting a baseless conspiracy theory against him.

    2. The next time the ‘Democrats are the real racists’ argument is advanced by someone who is not a bigot will be the first time.

      Carry on, clingers. With more race-targeting voter suppression, advocacy for Confederate memorials, and overtly racist Republican Party officials, please.

      1. Artie, in full terminal stages of whataboutism…

      2. Went off your meds again, didn’t you Rev.? For shame.

      3. I don’t care what your skin color is

        If you define that as “bigotry”, it’s because you are a lunatic

        The Democrats are the Party of racism in America

        Calling it “affirmative action” doesn’t make it any less racist.

        Judge all people by hte content of their character, not the color of their skin

    3. The rest of the sentence (and the memo itself) make clear that the opposition to him being Latino had nothing to do with racist views towards Latinos. The opposite, in fact; they thought it would make him more attractive.

      “The Democrat party is more racist than the Republican party, and sees minorities as useful pawns in their quest for power.”

      They were concerned (as stated) that Republicans would successfully utilize his minority status.

      1. Well, I guess it depends what we mean by “racist,” doesn’t it?

        Did they not oppose him as a judge due to his race/nationality? This is not unlike Trump’s comment that Paul Ryan called the “textbook definition of racism.”

        But I agree with you that this opposition — however cringeworthy and anti-egalitarian — had nothing necessarily to do with “racist views toward Latinos.” Just like Trump’s claim that a proud member of La Raza of Mexican heritage might be biased against him due to the wall — however cringeworthy and anti-egalitarian — had nothing necessarily to do with “racist views against Latinos.”

        So, I would favor your more logical, narrow and honest view of what “racism” means. But unfortunately that’s no longer an accurate descriptive definition of how this term is used today, due to the leftist redefinition for use as a political weapon. We’re in this nonsensical realm whether you like it or not.

      2. If you are harming someone because of his skin color, then you are a racist

        Everything else is BS

        Senate Democrats and their left wing masters filibustered Estrada because he was Hispanic

        That is racist, and evil

        1. If you are harming someone because of his skin color, then you are a racist

          Everything else is BS

          Senate Democrats and their left wing masters filibustered Estrada because he was Hispanic

          That is racist, and evil

          It’s babby’s first race card! He had to completely eliminate any examination of motives, but he did it!

  2. Some e-mails are more equal than other emails.

    Seems to have something to do with party affiliations – – – – – – – – –

  3. Kavanaugh should just say that all the emails in question were about yoga appointments and wedding plans.
    That should suffice.

    1. ….and then take a hammer to his old cell phones.

      1. Or he could wipe it…with you know, like, a cloth.

    2. I know Kavanaugh won’t say this but it would be a highlight if he asked Sen. Leahy why everyone calls him Leaky and whether old Leaky might be projecting his own leaks onto others.

  4. In today’s Supreme Court confirmation hearing, Senator Pat Leahy (D-VT) asked Judge Brett Kavanaugh about whether he had been aware that a Republican Senate Judiciary Committee, with whom he had worked on judicial nominations during the Bush Administration, had surreptitiously obtained confidential documents from Committee’s Democratic staff.

    The documents that were not placed behind the Democrat firewall? Not sure how they were “surreptitiously obtained” when they were available to all members.

    1. They weren’t supposed to be available to all members. According to the old Boston Globe article, there was a glitch that allowed Miranda to access the Democratic staffers side without a password. He didn’t hack it but it was clearly something he wasn’t supposed to have access to and he knew it.

      1. That falls under tough shit.

        If your stuff is accessible with no password, cry me a river about it.

        He did nothing wrong. At all. The Democrats were.

        “He didn’t abide by the honor code that we, you know, ignore with impunity” isn’t going to make me feel bad for his actions.

        1. This wasn’t badness because Dems are bad.

          There are lots of examples of Dems getting unauthorized disclosures and doing right by the other side. You just declare Dems have no honor and endorsed you side cheating.

          Do better.

        2. Ah, the Aaron Schwartz defense. If it’s relativey easy to circumvent, it’s not improper even if you know it’s against the rules.

        3. It would be careless of me to leave my house unlocked. But that doesn’t change the fact that someone who comes in and steals things is a thief.

  5. All,
    Can anyone point to the best compilation of the documents leaked? Senator Leahy indicated that a draft of one of his memos from January 2003 was sent to Kavanaugh. I would like to see what it said.

  6. “In today’s Supreme Court confirmation hearing, Senator Pat Leahy (D-VT)…”

    I find it amusing that Leaky Leahy is upset about leaks from his emails. Old Leaky is well known for releasing classified data to the media aka Progressive Propagandists for decades.

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