May 19, 2005, 8:23 a.m.
Rigging the Borking Game
The Left is ready for hardball.

By Jeffrey Lord

On February 12, 2002, the Department of Justice was notified by a reporter for the Washington Post that the Post had "questions" about a 1997 case from which then sitting federal district judge D. Brooks Smith had recused himself. At the time, Smith was President Bush's nominee for the Third Circuit Court of Appeals. The questions, as I later discovered, were based on research not by the Post but rather information researched by Douglas T. Kendall, an operative for the liberal George Soros-financed Community Rights Counsel. Kendall's work, in turn, was based on case files obtained from the federal courthouse in Pittsburgh, Pennsylvania where Smith, then the Chief Judge of the Western District of Pennsylvania, presided.

It was one of the first shots across the bow in what became, in U.S. Senator Arlen Specter's words, "a knock down, drag out fight" to get Smith confirmed. Surprising many Washington and legal observers who were simultaneously watching the defeat of Mississippi's Judge Charles Pickering for a 5th Circuit seat, Smith won his fight. Thanks to Specter and an unanticipated backlash from Pennsylvania Democrats and Republicans, many of them women attorneys, furious over the way the U.S. Senate handles judicial nominations.

The recent revelation by columnist Robert Novak that a Democratic operative has been demanding the personal records of U.S. Appeals Court Judge Edith Jones (5th Circuit) of Houston — a potential Supreme Court nominee — is not a surprise.

One of the dramatic central facts of the Smith victory was his solid support from those Pennsylvanians who bucked pressure from the famously powerful Washington special-interest groups of which they themselves were members — including the liberal Alliance for Justice, People for the American Way, the National Organization for Women, and the Community Rights Counsel. Inside documents flowed into my hands as incensed Pennsylvanians, tired of Washington's handling of lawyers in their community, exposed the way the "borking game" works — from the inside.

Based on Smith's experience, this is what the new nominee can expect:

Recusal issues: Allegations that the judge in question should have recused himself from a particular case that will be selected in advance of the individual's nomination. For Smith, it was the so-called Black case that involved his voluntary recusal from a fraud case involving a bank that employed his wife.

Ethics: This charge, fueled in Smith's case by a $50,000 grant from Soros to the Community Rights Counsel, will be made in part if the judge has participated in any economic seminars sponsored by outside groups, an acceptable practice under the Judicial Code of Conduct and specifically approved by Chief justice William H. Rehnquist.

Religion: On three separate occasions, New York Senator Charles Schumer wrote private letters to Judge Smith, demanding to know his position not just on whether there was a right to privacy in the Constitution (Smith said there was) but asking directly for Smith to reveal his personal beliefs on whether the Griswold v. Connecticut case that initiated the right-to-privacy issue was correctly decided. Smith and those around him instantly perceived the insistent questions as thinly veiled anti-Catholicism directed at the recently converted judge.

A rigged game: With the Senate then in the hands of the Democrats, Smith's confirmation hearing was chaired by Wisconsin Senator Russell Feingold. An astute Smith law clerk later matched up Feingold's oral questions to the judge as reprinted in the hearing records with the internal documents we had obtained from the Soros group. Not only were Feingold's questions on Smith's ethics drawn directly — and sometimes word for word — from the Soros group, when Feingold later submitted 28 written questions for the judge all but seven came from the Soros documents. In other words, Soros-financed operatives had paid for research obtained from the federal courthouse in Pittsburgh, the research used by a U.S. senator to question Smith on Smith's ethics, and for research supplied to the Washington Post, which than ran stories without acknowledging who had paid for their research. Additionally, a New York Univesity Law School vice Dean, Steven Gillers, was used by Feingold and the Post to comment on Smith's ethics, without revealing that Gillers, too, was a consultant to the Soros-funded CRC.

On July 17, 2000, the CRC was the subject of a complaint made directly to Chief Justice William H. Rehnquist by Leonidas Ralph Mecham, the director of the Administrative Office of the United States Courts, and David Sellers, the AO's deputy assistant director for public affairs. The subject: "Apparent Partnership of Washington Post and Community Rights Counsel on Judges' Travel and Recusal Questions." Attached was a three page, single-spaced e-mail Sellers had sent to the Ombudsman of the Post. The e-mail focused on repeated stories in the Post over a three-year period that implied scandal in federal judges' financial-disclosure reports, recusal issues, and attendance at economic seminars. The memo said the relationship of the paper and its source — the CRC's Kendall — "raises serious ethical and factual questions" which were then detailed at length.

Sellers specifically accused Kendall of providing "a written analysis" to the paper of his "findings" and "in exchange" for Kendall's work "the paper has given him a platform" for his views. A Post reporter admitted that "the Community Rights Counsel...has done much if not all of the research for him." He ended his e-mail by stating that "there appears to be a disturbing relationship that has developed between a special interest lobby and a Washington Post reporter."

Up until now, the targets of these tactics have been judges like Smith — nominees for appeals-court positions. But the real target is bigger — the next nominee to the Supreme Court. Make no mistake — what Robert Novak uncovered with the activities involving a former aide to Senate Democratic leader Harry Reid is only the tip of a massive iceberg.

— Jeffrey Lord, a former Reagan White House aide, is the author of The Borking Rebellion. The book will be published in July by KatcoMedia.

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