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The Case of the Probing Pickle
By Bobby Eberle
March 15, 2004

With all good scandals of the past came an investigation. Evidence was collected; the facts were analyzed; and conclusions were drawn. In some cases, the investigation led to the resolution of the scandal. In others, it simply added fuel to the fire. Case in point is the ongoing saga of Manuel Miranda, the former counsel for the Senate Judiciary Committee and the person accused of improperly obtaining Democratic strategy memos which outline efforts by liberal special interest groups to influence committee activities.

The Senate Judiciary Committee memo scandal, or memo-gate as it's come to be called, focuses on two core issues -- one which has garnered considerable media attention, and one that hasn't. First, there is the issue of the actual contents of the memos. Surely, memos showing seemingly unethical behavior between Senate Democrats and left-wing lobbying groups to use committee scheduling to derail and delay votes on President George W. Bush's judicial nominees would come under the magnifying glass of the media, right? Wrong. Instead, the media and the investigation by Senate Sergeant at Arms Bill Pickle have focused on how the memos were obtained and distributed.

Pickle's investigation has been soundly criticized by Manuel Miranda and his attorneys. The end result of Pickle's efforts -- a report which Democrats attempted to keep partially private -- shows that Miranda did nothing illegal in obtaining the "secret" Democratic strategy memo. Yet, that conclusion was buried under a mound of innuendo designed to keep the focus on Miranda and away from the contents of the memos.

The original claim was that Miranda "broke into" the files of Democratic staffers and released the information to the media. As it turns out, the files were not secured at all. The computer server was open to both Republicans and Democrats on the Senate Judiciary Committee. A former committee aide signed a sworn affidavit stating that the Senate Judiciary Committee network lacked "security protocols" and was an "open" server. The aide said that he discovered documents of both Republican and Democratic staff could be accessed on the server.

However, despite the evidence, Pickle's report yielded what Miranda's attorneys called "seriously flawed" results. In a letter to Republican members of the Senate Judiciary Committee, one of Miranda's attorneys, Adam Augustine Carter, said that Pickle's report contained "no application of tools such as cross-examination, refreshing of recollection, or the disinfectant sunshine that a stenographer would have brought to the quality of the investigator's questioning and judgment."

An examination of the Pickle report led Carter and Co-counsel Arthur D. McKey, to conclude that the document contained "9 unsupported conclusions of law and findings of fact; 20 instances of biased statements; 22 instances of false inferences; [and] 15 examples of preferences between interviewees and parties."

Carter also noted "14 places where the facts as stated are simply wrong; 15 statements that are embarrassingly negligent; 10 examples of internal contradictions; 23 instances representing major omissions; and 14 statements representing half-truths."

Is this the best that the Senate investigation has to offer? I like Manny Miranda, but enough about him, already! What about the contents of the memos. The members of the media need to focus on what's really important. To affect the outcome of court rulings through inaction on Bush judicial nominees is wrong. To blackball nominees because they hold conservative values is also wrong. If the nominees are truly extreme, then in a nearly-even Senate, those nominees would fail given an up or down vote. Let's give them that vote and see what happens.

When it's all said and done, the contents of the memos are what should drive any investigation. These memos, which are at the heart of the scandal and should have been at the heart of the Pickle investigation, detail correspondence between Democrats and liberal special interest groups to use committee procedures to delay consideration of Bush's judicial nominees.

In January, Elaine Jones, President and Chief Counsel of the NAACP Legal Defense and Education Fund announced her retirement after a complaint was filed against her with the Virginia Bar Association for her role in the scandal. Documents show that she sought to delay the confirmation hearing of a judge to the 6th Circuit Court of Appeals until after the Michigan affirmative action case, of which she was a participant, was decided.

Another judicial memo to Sen. Richard Durbin (D-IL) stresses the need to delay action on D.C. Circuit Court nominee Miguel Estrada. The memo labels Estrada as "especially dangerous." Included in the reasons for this label was the fact that Estrada is "Latino."

The staffer wrote in the memo, "They want you to hold off on Estrada as long as possible."

Miguel Estrada has since withdrawn his name from consideration after years of delay and filibusters by Senate Democrats.

In other memos to both Sen. Edward Kennedy (D-MA) and Sen. Durbin, staffers documented efforts by liberal special interest groups to influence the scheduling of Judiciary Committee hearings in order for the groups to have more time to mount an attack on a particular Bush nominee.

In a memo to Sen. Durbin dated October 15, 2001, a staffer wrote, "The groups are asking that the Committee hold a second hearing on Pickering in a few weeks, when they will have had adequate time to research him fully."

The staffer continued, "The decision to schedule Pickering's hearing was made by Senator Leahy himself, not his staff, so the groups are likely to ask you to intercede personally. They will also seek assurances that they will receive adequate warning of future controversial nominees."

The nominees put forward by President Bush would pass if given a fair vote on the Senate floor -- a vote that each nominee who has made it out of committee has earned. The inaction by Senate Democrats on these judicial nominees is tragic. The filibusters by Senate Democrats are unprecedented, and now that some of their tactics have been revealed through the efforts of Manny Miranda, the American public should demand a "real" investigation. We need the meat and not just the pickle.

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Bobby Eberle is President and CEO of GOPUSA (www.GOPUSA.com), a news, information, and commentary company based in Houston, TX. He holds a Ph.D. in mechanical engineering from Rice University.

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Note -- The opinions expressed in this column are those of the author and do not necessarily reflect the opinions, views, and/or philosophy of GOPUSA.