Kennedy Dodges Questions on Judicial 'Memogate'

By Robert B. Bluey | July 7, 2008 | 8:30 PM EDT

Capitol Hill ( - U.S. Sen. Ted Kennedy (D-Mass.) appeared flustered Wednesday when confronted with allegations that two of his former aides plotted to delay the confirmation of one of President Bush's judicial nominees solely to influence a high-profile affirmative action case.

The former Kennedy aides - Olati Johnson, his judiciary counsel, and Melody Barnes, his chief counsel - were responsible for an April 17, 2002, memo that recommended Kennedy delay the confirmation process of Julia Smith Gibbons to the 6th U.S. Circuit Court of Appeals, according to a report released Tuesday by the Center for Individual Freedom.

Gibbons was eventually confirmed, but not until July 29, 2002, after the appeals court had already ruled on an affirmative action case involving law school students at the University of Michigan. The court issued its ruling May 14, 2002. That case and one involving undergraduate students at the University of Michigan were later appealed to the U.S. Supreme Court.

When asked Kennedy about the allegations Wednesday, the senator stumbled over his words, shook his head and was quickly escorted from the room by his staff.

"No. I'm not gonna, uh, re, uh," Kennedy muttered.

He also wouldn't confirm or deny whether Johnson and Barnes were responsible for contents of the memo.

"No. No," Kennedy said as he scurried for the door.

The senator, who was holding a press conference on pension relief for small businesses, was also asked whether he would condemn the idea of delaying a judge for the sole reason of influencing a court case. Kennedy didn't respond.

The Center for Individual Freedom (CFIF) also had no luck getting Kennedy to comment for its report, said Jeffrey Mazzella, the group's executive director. Mazzella said Kennedy's latest response, or lack thereof, was troubling.

"He dodged the question. He was obviously rattled," Mazzella said. "When asked point-blank, he couldn't deny any wrongdoing, either by himself or by his staff. It just further enforces the need for a complete and full investigation into all the obvious ethical wrongdoing that took place here."

The CFIF report, which fingers Johnson as the author of the April 17, 2002, memo, raises several ethical questions because of Johnson's employment history.

Prior to joining Kennedy's office, Johnson was assistant counsel at the NAACP Legal Defense and Educational Fund, which was a defendant-intervenor in one of the University of Michigan affirmative action cases. In that capacity, Johnson served as co-counsel.

According to the CFIF report, Johnson's former boss, Elaine R. Jones, president and director-counsel of the NAACP Legal Defense and Education Fund, made a telephone request to Kennedy's office asking that Gibbons' confirmation to the 6th Circuit be delayed in order to prevent Gibbons from voting on the affirmative action cases.

The April 17, 2002, memo, on which Barnes apparently concurred, was the byproduct of that conversation, according to the CFIF report.

The memo spells out the rationale for delaying Gibbons' confirmation: "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 6th Circuit rules, to review the case and vote on it."

But the memo also highlighted the ethical concerns that come with delaying a confirmation solely for the purpose of influencing a court decision.

"[Barnes] and I are a little concerned about the propriety of scheduling hearings based on the resolution of a particular case," Johnson wrote. "We are also aware that the 6th Circuit is in dire need of additional judges. Nevertheless we recommend that Gibbons be scheduled for a later hearing."

Mazzella said the revelation that two of Kennedy's closest advisers were involved should prompt an immediate Senate Ethics Committee investigation.

"Senator Kennedy's blustery stonewalling of reporters' legitimate questions about the unethical recommendations of his staff indicate that the only way answers are going to be forthcoming is through a Senate Ethics Committee or Justice Department investigation," Mazzella said.

Calls to Kennedy's press secretary, Jim Manley, as well as Johnson and Barnes weren't returned Wednesday. Mazzella said he provided each of them with an opportunity to react to his report, but he received no response.

See Earlier Story:
New Info Indicates Corruption in Judicial Confirmation Process
(April 7, 2004)

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