December 15, 2003, 8:22 a.m.
The Judiciary Memos: Who Investigates Whom?
And why aren’t the big newspapers interested?

What really happened to the Democratic judicial memos?

Were they stolen by Republicans? Or did the documents — which revealed Senate Democrats doing the bidding of outside interest groups determined to block the president's nominees — fall into GOP hands because of a computer glitch?

Bet on the latter. According to several sources, Republicans got a glimpse of some Democratic memos after the Judiciary Committee's computer system was changed by then-chairman Sen. Patrick Leahy (D., Vt.), when Democrats took control in the spring of 2001.

Ironically, when the change took place, some Republicans worried that Democrats would be looking at their stuff. "When they fired some of Hatch's computer people, we all joked, well, they'll be reading our e-mail," says one GOP aide. "It got to the point where I would prepare things and put them on a disk instead of the hard drive, because I was suspicious. But I had no proof."

Then some Republicans noticed a quirk in the new system. You could sit down in front of the computer, turn it on, and be presented with several on-screen icons.

Click one, and you were in your own documents. Click another, and bingo, you were looking at Democratic files.

"You log on in the morning, and instead of tapping on one icon, you tap on the other icon, and all of a sudden, you're in a Democratic document," says another Republican. No hacking, no unauthorized use of someone else's computer, no stealing passwords — no nothing.

Now, it's not right to go snooping in other people's files. But given the openness of the system, it's not a criminal act, either.

Of course, leaking the memos is another issue. After high-profile Democratic leaks in the Clarence Thomas confirmation battle, the committee adopted rules against giving out confidential information. The leak of the Democratic strategy memos could well violate those rules. If so, chairman Orrin Hatch (R., Utah) will have to take action.

But what about the press? One might expect most journalists — normally the recipients of leaks and protectors of leakers — to be more interested in what the documents say than in who leaked them.

Instead, both the Washington Post and the New York Times seem strangely incurious; a faithful reader of both papers, if he read or heard or watched no other news, would know that there was some sort of flap about Judiciary Committee memos, but would have no idea what the documents were actually about.

For example, when the Times, which had ignored the story completely, finally took notice, it ran an editorial which said simply that the memos "detailed how Democratic senators had strategized and consulted outside interest groups dedicated to opposing some of President Bush's more extreme judicial nominees."

No details. No mention, for example, of the Democratic decision to delay the confirmation of a nominee to the Sixth Circuit Court of Appeals because adding a judge to the severely understaffed bench might lessen the Democrats' allies' chances of winning a major affirmative action case then before the court.

By the way, the nominee who was held back, Julia Gibbons, was a completely noncontroversial candidate who was in no way one of the president's "more extreme nominees." Gibbons was confirmed by a 95 to 0 vote — once the affirmative action case was decided.

The Times also failed to mention the ethnic profiling of former nominee Miguel Estrada, opposed by Democrats because he was a Hispanic legal star who might have been headed for the Supreme Court.

And even on the issue of how the documents came to light, the Times seemed a bit out of it. The editorial, entitled "Partisan Hacking in Congress," referred to an un-named Republican who "hacked into the minority's computer files."

Call it what you like, but the computer glitch described above did not require anyone to "hack" into any files.

All of this half-reporting has left some Republicans very, very angry. They remember the fight over the appeals-court nomination of Bill Pryor (now the target of a filibuster), when Democrats made a big fuss about documents concerning Pryor's fundraising work for the Republican Attorneys General Association.

The only problem was, the documents were apparently taken illegally from the organization and given to Judiciary Committee Democrats — and then to the press.

Back then, Democrats weren't so angry about leaks. In fact, they saw nothing wrong with using the information — which, by the way, wasn't very damaging — against Pryor. Now, however, they're outraged and are calling for a full investigation.

That's fine. But one pro-Republican group, the Committee for Justice is calling for the Senate leadership to investigate whether the Democratic staffers who wrote the memos violated any ethical rules — whether, for example, it is perfectly O.K. to delay a confirmation in order to influence an ongoing court case.

As long as the Senate is in an investigating mood, that seems like a good place to start.

— Byron York is also a columnist for The Hill, where portions of this first appeared.