Senate Democrats Want to Talk Transparency? Let's Talk About MemoGate

President Bush's nominee for a seat on the District of Columbia Court of Appeals, Miguel Estrada is sworn in at his Senate Judiciary Committee confirmation hearing Thursday, Sept. 26, 2002 in Washington. (AP Photo, Terry Ashe)

During Brett Kavanaugh’s confirmation hearing last week, there was a bitter showdown between Democrats and Republicans over tens of thousands of documents from the judge’s time as a top aide in the Bush White House.  Democrats insisted the public has a right to see every single document from the judge’s past.


Senator Cory Booker (D-NJ) said he was willing to risk expulsion from the Senate for making the confidential documents public (even though the ones in question had already been cleared for release). His Democratic colleagues backed him up.

“Count me in too…. I am releasing that document to the press and I would defy anyone reading this document to be able to conclude that this should be deemed confidential in any way, shape or form,” said Senator Hirono.

Senator Richard Blumenthal (D-CT) called the “confidential” designation of the docs “bogus” and Senator Amy Klobuchar (D-MN) gave Booker her full support, demanding that “every single document” be made available to review.

“This confirmation is too important for us to conceal documents that may reveal the nominee’s views and I think we shouldn’t be proceeding under these grounds,” Senator Coons (D-DE) agreed.

Senator Dick Durbin (D-IL) really stuck his neck out: “And I just want to say to my colleagues, particularly my colleague from New Jersey, I completely agree with you. I concur with what you are doing and let’s jump into this pit together. And I hope my other colleagues will join me. So if there’s going to be some retribution against the senator from New Jersey, count me in. I want to be part of this process.”

Senator  Sheldon Whitehouse (D-RI) tweeted: “For the record, I used text of so-called ‘committee confidential’ documents in my opening statement on #Kavanaugh. I did not seek ‘permission’ because I think the designation was invalid and without legal effect.”


And Senator Patrick Leahy (D-VT) tweeted: “I stand with Senator @MazieHirono and Senator @CoryBooker. Senate Republicans’ abuse of committee confidentiality has kept 190,000 pages of Judge Kavanaugh’s record needlessly hidden from the American people. It’s a sham. What more are Republicans hiding? Enough!”

It’s safe to say that in 2018, Democrats on the Senate Judiciary Committee are all about being open and transparent when it comes to releasing sensitive documents. But they weren’t always that way.

In 2003, when a Republican staffer discovered a cache of confidential Democrat communications on the committee’s single computer network and leaked the scandalous contents to the Wall Street Journal, it became the scandal of the decade and was dubbed “MemoGate.” Even though the network was shared by both Republican and Democrat staff and the Democrat papers had been “freely accessible for some time,” the staffer was accused of stealing and even hacking the information.

Outraged Democrats demanded an investigation into the matter and Senator Orrin Hatch, then the chairman of the committee, caved.  To the dismay of many conservatives, he directed William Pickle, the Senate sergeant at arms and doorkeeper, to conduct a Senate internal inquiry to see if any laws had been broken. The investigation lasted four months and resulted in the “Pickle Report.”

The 65-page report concluded that Republican staff aide Manuel C. Miranda and another Republican staff aide improperly read, downloaded, and printed as many as 4,670 files concerning the Democrats’ tactics in opposing many of President Bush’s judicial nominees. The report suggested that many other Republican staffers may have been involved in leaking the documents, as well.


Because Kavanaugh was working in the Bush White House at the time, Democrats in 2018 are asking, “What did Kavanaugh know, and when did he know it?”

During his Senate testimony in 2004, Senator Hatch asked him if he had received “any documents that appeared to you to have been drafted or prepared by Democratic staff members of the Senate Judiciary Committee.” Kavanaugh said no.

Two years later, Senator Ted Kennedy (D-MA) asked him about the same documents, and Kavanaugh replied, “I don’t know what the universe of memos might be, but I do know that I never received any memos, was not aware of any such memos.” He was careful to note at the time that he might have unknowingly seen information “derived” from the memos.

Democrats are now trying to accuse him of perjury because of emails he received that might have referred to information in the memos, including one from a different Judicial Committee staffer containing “gossipy, insider info” of the sort that is routinely exchanged in Washington. None of the emails he received showed indications they were from the stolen memos.

As National Review reported, “there is not a single email or document showing that he actually received a stolen memo, much less that he did so knowingly.”

The evidence of perjury is so lacking that even a panel of experts convened by Vox concluded that there was no crime. Professor Miriam Baer of Brooklyn Law School put her objection bluntly. “I don’t see any lie,” she said. She can’t see any lie because there was no lie.

So, the Democrats really have no case here — not even a hint of scandal.


No, the real scandal was always in the “MemoGate” documents the Dems worked so hard to push out of the spotlight in 2003 and 2004.

The documents confirmed what Republicans had always suspected about the unholy alliance between powerful Democrat senators and the left-wing special interest groups from whom they took marching orders.  A November 7, 2001, document showed that Senate Democrats met with leaders from the Lawyers’ Committee for Civil Rights (LCCR), National Association for the Advancement of Colored People (NAACP), People For the American Way (PFAW), National Abortion Rights League (NARAL), Alliance for Justice (AFJ), Leadership Conference on Civil and Human Rights (LCCR), American Association of University Women (AAUW), National Women’s Law Center (NWLC), and National Partnership (NP) to strategize against President Bush’s judicial nominees. The memos make clear that Democrat senators on the Judiciary Committee didn’t make a move without their approval.

As Miranda, the Republican staffer who resigned in the wake of the “scandal,”  later explained, the MemoGate papers showed corruption on the part of the minority Democrat senators in their efforts to block President Bush’s judicial nominees.

• senators used their power to obstruct judicial confirmations in conjunction with promises of campaign funding and election support in 2002;
• senators may have used Senate staff and resources to raise campaign funds for themselves and used their rejection of judicial nominees as fund raising inducements;
• senators coordinated with parties to guarantee results in pending litigation;
• senators and staff kept detailed lists of the ideological make-up of federal circuit courts with an eye to influencing the outcome of pending litigation;
• senators placed circuit-wide holds on confirmation of 6th circuit judges in order to influence the outcome of pending litigation;
• senators effected a grave deception on the American people by pre-determining confirmation outcomes in collusion with special interest groups for purely political reasons, even allowing liberal special interests to vote on which nominees would be permitted a hearing;
• senators picked what judicial nominees would be rejected well in advance of any hearing and allowed special interests actually to determine what nominees would get hearings and votes; and
• senators had a different standard for Hispanic judicial nominees eligible for elevation to the Supreme Court and an improper design to block Miguel Estrada in particular because he was a Latino who could someday be elevated to higher service.


Specifically, the paper said, “the groups also identified Miguel Estrada (D.C. Circuit) as especially dangerous because he has a minimal paper trail, he is Latino, and the White House seems to be grooming him for a Supreme Court Appointment. They want to hold Estrada off as long as possible.”

In 2001, there was no good reason for Democrats to oppose Estrada, a “whip-smart” lawyer with a Harvard degree and record of winning arguments.  Yet Bush’s nominee to the U.S. Court of Appeals for the D.C. Circuit never even got a vote in the Senate.

Senator Chuck Schumer (D-NY) filibustered his nomination seven times. Democrats said publicly that they needed to see more documents on Estrada. Sound familiar?

Miranda described some of the corruption he saw in the memos:

For example, one unpublished Memogate paper evidenced that one Democrat may have used his Committee staff and Senate resources to raise political funds. One published document showed an effort to block confirmations to the SixthCircuit, in relation to the then-pending University of Michigan affirmative action case. In the fall of 2002, the most striking corruption evidenced by unpublished Memogate papers was the otherwise unexplained delay of Judge Dennis Shedd’s confirmation apparently to satisfy contributors who did not want to see him elevated, so as not to throw a wet blanket on election efforts by Democratic grassroots allies in North Carolina and Louisiana.

The Memogate papers also showed that the opposition to the confirmation of Texas Supreme Court Justice Priscilla Owen to the 5th Circuit was led, not by the abortion rights lobby but by the abortion clinics industry, solely because Justice Owen was perceived as being an obstacle to easily obtained and paid-for abortions for minor girls without any parental notification.


There’s nothing more ruthlessly effective than Democrats in crisis mode, so despite the damning memos, Democrats, with the help of the distracting Pickle Inquiry and their willing accomplices in the media, were able to disguise their own egregious wrongdoing by accusing Republican staffers of engaging in criminal activity.

In the end, the Pickle Report found “that the Shared Network and the Server were largely ‘open,’ with 80 percent of its stored papers unprotected and accessible by all authorized users, and that, through evident gross negligence in training and supervision, the Shared Network lacked even the most fundamental security precautions.”

Miranda called the Pickle Inquiry nothing if not a bill of attainder and an abuse of constitutional power.

If a lot of this sounds familiar it’s because some things never change in Washington. Including Democrats desperately throwing everything but the kitchen sink at Republican judicial nominees.


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