Susan Jones, CNSNews.com
Wednesday, April 7, 2004

A government watchdog group says it knows who wrote an incriminating memo to Sen. Ted Kennedy recommending that he delay the confirmation of one of President Bush's judicial nominees - apparently to influence the outcome of an important pending case.

According to The Center for Individual Freedom, two of Sen. Kennedy's former aides, in a memo dated April 17, 2002, recommended that he delay the confirmation of Judge Julia Smith Gibbons to the U.S. Court of Appeals for the 6th Circuit. The reason? To influence the outcome of the University of Michigan cases on racial preferences, then pending before the 6th Circuit appeals court, CFIF said.

Olati Johnson, then Judiciary counsel to Kennedy, wrote the memo, CFIF said. Melody Barnes, who at the time was chief counsel to Kennedy, joined in the memo's recommendation that Gibbons' confirmation be delayed. In all copies of the memo that have been made public, Johnson's and Barnes' names have been redacted, CFIF noted.

Johnson's job history is key to the story, the Center for Individual Freedom said.

Immediately before joining Kennedy's staff in September 2001, Olati Johnson was assistant counsel at NAACP Legal Defense and Educational Fund. There she served as co-counsel for Elaine R. Jones.

Jones had a direct interest in the outcome of the University of Michigan undergraduate case; she served as counsel for one of the parties.

In fact, according CFIF, Olati wrote the memo urging Kennedy to delay Judge Gibbons' confirmation based on a telephone request from Elaine Jones.

According to CFIF, "The revelation that Johnson authored the memo, responding to a request from her former colleague, raises significant new ethics questions regarding the highly publicized affirmative action cases and Democratic efforts in the U.S. Senate to obstruct judicial confirmations.

"As co-counsel in the University of Michigan case, Johnson exceeded the bounds of acceptable advocacy with her recommendation to Senator Kennedy."

The center noted that Olati Johnson and Melody Barnes raised ethical concerns about the April 17 memo to Kennedy: "[Melody Barnes] and I are a little concerned about the propriety of scheduling hearings based on the resolution of a particular case," Johnson wrote.

Their memo also specified the rationale for the delay: "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."

According to The Center for Individual Freedom, Olati's memo noted that the "6th Circuit is in dire need of additional judges" and that Judge Gibbons was an "uncontroversial nominee." CFIF said those two remarks indicate there was no reason to delay Gibbons' confirmation - other than to affect the outcome of the case in question."

"The scandal is growing," said CFIF Executive Director Jeffrey Mazzella.

"First we learn that Elaine Jones tried to affect a pending case by stacking the judicial deck in her favor. Now it turns out that she enlisted the help of her former employee, Olati Johnson, who was a co-counsel in the University of Michigan undergraduate affirmative action case before she worked for Senator Kennedy."

CFIF has run several advertisements in recent weeks, urging Sen. Kennedy and other Senate Judiciary Committee Democrats to come clean about the memos.

"Two of Kennedy's closest advisors recommended that he engage in improper conduct," Mazzella said on Tuesday. "It's time for Senator Kennedy to answer the key question in this mushrooming scandal: Did he try to influence a major pending case by obstructing a judicial nominee? This revelation demonstrates beyond any doubt that his staff did."

The Center for Individual Freedom is among a number of groups demanding an investigation by the Senate Ethics Committee. The request for such a probe has not yet been answered, CFIF noted.

"Before Senator Kennedy attacks President Bush or other leaders for having a credibility problem, he ought to look at himself and his own staff," Mazzella concluded.

"The staffers who wrote this memo have obviously committed a serious ethical breach. Senator Kennedy ought to acknowledge whether he is guilty of the same major ethical violations."

The Center for Individual Freedom describes itself as a constitutional advocacy group that "fights to protect individual freedom and individual rights in the legal, legislative, and educational arenas."

Since 2001, its Confirmation Watch project has worked to "expose and eliminate the corruption and manipulation that plagues the judicial confirmation process."

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