Johnson wrote that she and Melody Barnes, then the Judiciary Committee's chief counsel, "are a little concerned about the propriety of scheduling hearings based on the resolution of a particular case." It added: "Nevertheless, we recommend that Gibbons be scheduled for a later hearing." So, Gibbons was not confirmed for three months -- during which period the 6th Circuit upheld the Michigan program by a 5 to 4 vote.
Why did this perversion of the judicial process not arouse Republican outrage? Because the incriminating e-mail is one of thousands of internal messages downloaded last year from Democratic computers by Republican staffers, revealing a carefully calculated strategy of blocking Bush's judicial nominations. The Democrats went on offense, changing the subject from the conspiracy unveiled by the memos to alleged impropriety of their disclosure.
It worked. The sanctity of senatorial communications trumps the substance of the Democratic abuse in the view of Senate Judiciary Committee Chairman Orrin Hatch, who is backed by Senate Majority Leader Bill Frist. They forced the resignation of two young Republican staffers who had uncovered the memos, which were then buried.
However, outsiders will not let the issue die. The Center for Individual Freedom, a conservative legal action group, filed a complaint with the Senate Ethics Committee. Peter N. Kirsanow, a Washington lawyer and Republican member of the Civil Rights Commission, on April 13 suggested a commission staff study. Kirsanow told this column the commission should investigate how a party to major civil rights litigation tried to skew the outcome. Asked about this at his April 20 news conference, Sen. Kennedy refused comment and stalked off.
The next step is an attempt today by Kirsanow to bring the matter before the Civil Rights Commission. He will ask the commission's longtime liberal chairman, Mary Berry, to recuse herself because she serves on the board of the NAACP Legal Defense Fund. That is unlikely in the extreme, but the extraordinary perversion of the Senate's constitutional duties will be put on the public record for the first time.