Judiciary

Kennedy Gets a Pass Again

Most governmental abuses are ultimately traceable to what we used to call “the arrogance of power,” exercised by politicians convinced that in the struggle to do good it is perfectly acceptable to cut corners.

Such politicians know they are right and can justify what they do with righteous anger. They accept the argument that the end justifies the means and are always the chief enemies of the very democratic system they so often champion.

The senior senator from Massachusetts is such a man and has proved it once again by personally manipulating the judicial selection process to ensure that a case he deemed important would be decided as he wished. That he was willing to do it was outrageous, but the fact that he seems to have gotten away with it is worse.

Consider the facts. Edward Kennedy’s counsel on the Senate Judiciary Committee, Olati Johnson, urged him in April 2002 to force a delay in the consideration of an uncontroversial nominee to the 6th Circuit Court of Appeals for the specific purpose of affecting the outcome of the challenge to the University of Michigan’s affirmative action program, which was then before that court.

It seems that before joining Sen. Kennedy (D), Johnson had worked the case for the NAACP and that she wrote the memo in response to a request from her former boss, who was convinced that the case could be won only if the decision could be made before a vacancy on the court was filled.

Johnson knew that intervening in the way her former boss was suggesting was, well, unethical, but decided the case was important enough to justify it anyway. She admitted as much in her memo to Kennedy, writing that she and others on the Judiciary staff “are a little concerned about the propriety of scheduling hearings based on the resolution of a particular case … but recommend that (the nominee) be scheduled for a later hearing (because) the Michigan case is important.”

Kennedy acted on it, confirmation was delayed,and affirmative action was upheld by one vote.

This was truly a case in which the major actors decided consciously that the end would justify the means. Ethics and propriety be damned, they were all after a higher good and didn’t really care if the course they had to take to win meant skirting or breaking the rules.

Let’s be clear about one thing: It was the senator and not his aides who delayed the confirmation of a judge for the sole purpose of influencing the outcome of a case he cared about. They egged him on but warned him that what they were suggesting was ethically dubious. Apparently, that didn’t bother either them or their boss.

We wouldn’t know anything about any of this but for the purloined e-mails that have so angered Senate Democrats. They argue that the evidence of wrongdoing in the e-mails must be ignored by all because of how they came to light.

If Kennedy and his aides were criminal defendants, they would have a point. If the “authorities” had crossed the line in obtaining evidence against them, it would not be allowed in court and they would escape the punishment on what newspapers like to call “a technicality.”

The difference here, of course, is that it wasn’t the police who unearthed what turns out to be strong evidence of senatorial misconduct and that the senator is facing not a court of law but the court of public opinion. The rules for this court have always been a little difficult.

But Kennedy is different. Many of those who cover him and who might be expected to report honestly about such misdeeds are admirers of the man. They share his politics, and many of them were as happy as he was to see the Michigan case decided in favor of affirmative action. So they are in the process of giving him a pass, just as they have in the past.

Imagine what would have happened if the situation had been different. Imagine for a moment that Sen. Jeff Sessions (R-Ala.) or another GOP member of the Judiciary Committee who opposes affirmative action had discovered that the Michigan court was leaning their way, but believed the new judge’s presence would reverse the outcome.

Then imagine that one or more of them had done what Kennedy did — delay the seating of the judge for the sole purpose of guaranteeing that the court would decide on the issue the way they wanted it to. And then imagine that by whatever means, what they did became public.

If you think they’d get a pass, I’ve got some swamp land I’d like to sell you.

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This piece originally appeared in The Hill.

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