Sunday, October 10, 2004

NAACP Legal Group's Integrity Called Into Question

NAACP Legal Group's Integrity Called Into Question

Robert B. Bluey,
Thursday, Apr. 15, 2004 -- Fifty years after the Supreme Court's landmark Brown v. Board of Education ruling, the integrity of the NAACP Legal Defense and Education Fund is being challenged because of an alleged plot by its president to delay the confirmation of one of President Bush's judicial nominees.

A controversial memo reveals that Elaine R. Jones, president of the Legal Defense and Education Fund (LDF), used her relationship with an aide to Sen. Ted Kennedy (D-Mass.) to seek a delay in the confirmation of Julia Smith Gibbons to the 6th U.S. Circuit Court of Appeals two years ago.

At the time, the appeals court was embroiled in two high-stakes affirmative action cases involving the University of Michigan. Jones was trying to prevent Gibbons from being seated in time to cast a vote, according to a memo that outlines the strategy. The LDF defended the affirmative action policy in one of the cases, and thus had a stake in the outcome.

Jones' role in "Memogate" has cast a shadow over the LDF as it prepares to celebrate the Brown anniversary next month. The landmark ruling forced public education to be desegregated and thrust Thurgood Marshall, the LDF's winning attorney in the case, onto the national stage. Marshall went on to become the U.S. Supreme Court's first black justice.

The LDF's possible influence on the University of Michigan case has prompted Peter N. Kirsanow, a black Republican on the U.S. Commission on Civil Rights, to urge a full-scale investigation of Memogate. Kirsanow plans to pursue the matter at the commission's May meeting.

"If 50 years ago the Board of Education [in Brown] contacted a bunch of Dixiecrats and said, 'Hey, why don't you hold up the nomination of certain judges who are going to decide this case so we can continue to perpetuate segregation of our schools,' I think a few people would be a little upset," Kirsanow said.

"In this case," he added, "we have a memorandum that indicates someone was trying to affect the outcome in a case by holding up the confirmation of an otherwise uncontroversial judge. I'd like the [commission's] staff director to take a look at whether there was any prejudice to the administration of justice as a result of this."

The LDF is also facing a barrage of criticism from conservatives like commentator Armstrong Williams, Congress of Racial Equality national spokesman Niger Innis and Project 21 Director David Almasi.

Not only do they have a credibility problem, they are arrogant enough to believe they can get away with it," said Williams, a black columnist and talk show host. "This will become a story. It is not going away like they're hoping it will."

One reason it's not going away is the Center for Individual Freedom's continued pursuit of the matter. Its director, Jeffrey Mazzella, has led a campaign to expose the LDF's involvement. The group has filed ethics complaints against both Jones and the Kennedy aide, Olati Johnson.

"Under the leadership of people like Thurgood Marshall, LDF built a distinguished reputation," Mazzella said. "However, Thurgood Marshall sought to win victories in the courts, under the law. Ms. Jones and Ms. Johnson have flouted the law, sacrificing their ethics and damaging LDF's reputation."

As a result, Almasi of the black leadership group Project 21, said the LDF has lost much of the respect it earned in the pursuit of an equal society for black Americans.

"The NAACP Legal Defense & Education Fund has tarnished its image," Almasi said. "When they were afraid they wouldn't get what they wanted, they employed their friends in the Senate to make sure it went their way."

The Kennedy Memo

Kennedy's former counsel for the Senate Judiciary Committee, Johnson, wrote the April 17, 2002, memo outlining Jones' request for a delay in the Gibbons confirmation. Prior to joining Kennedy's staff, Johnson worked at the LDF, where she worked on the University of Michigan case.

The LDF served as lead counsel for students defending affirmative action in the undergraduate case. A separate case, involving students at the University of Michigan Law School was also before the court.

The memo spells out the rationale for delaying Gibbons' confirmation: "The thinking is that the current 6th Circuit will sustain the affirmative action program, but if a new judge with conservative views is confirmed before the case is decided, that new judge will be able, under 6th Circuit rules, to review the case and vote on it."

Gibbons was eventually confirmed, but not until July 29, 2002. That was two months after the appeals court upheld the affirmative action policy at the university's law school. That case and the one involving undergraduate students were later appealed to the U.S. Supreme Court.

Not long after the Supreme Court preserved the use of affirmative action in higher education, the memo naming Jones surfaced.

Jones' decision "produced widespread shock," according to a Jan. 16 New York Times report. Theodore M. Shaw, the LDF's associate director-counsel, told the Times, "The staff was genuinely caught off guard."

Jones worked at the LDF for 32 years, including 11 as its president. Even though she said the decision was based solely on her health and personal life, conservative critics questioned the timing of her decision.

"It stinks to high heaven," said Kay Daly, president of the Coalition for a Fair Judiciary. "The timing of it all stinks."

Daly's organization was one of four conservative groups to file a grievance against Jones with the Virginia State Bar in December. The complaint charged Jones with "intentionally attempting to improperly influence the outcome of a pending case."

Jones has assembled an impressive legal team that includes Williams & Connolly partner David Kendall, former Virginia Gov. L. Douglas Wilder, and New York University law professor Anthony Amsterdam. Kendall, who was President Bill Clinton's former attorney, did not return a call regarding the status of the ethics grievance against Jones.

The LDF Keeps Quiet

The LDF has remained silent on the entire controversy. Its public relations firm, McKinney & Associates, declined on behalf of the LDF to discuss the matter with Spokeswoman Erica Clark said, "LDF has not released any comment on this issue and they don't plan on making any comments."

Innis, whose Congress of Racial Equality signed onto the ethics complaint against Jones, said the LDF's silence is troubling, but he blamed the mainstream news media for not pursuing the story.

"This should raise a great deal of doubt in a lot of people's minds," Innis said. "But the sad thing is that it's not on anyone's mind because it's not being covered. They don't feel the heat or the necessity to respond to it."

Some prominent black leaders contacted by failed to respond to interview requests. Among them were Congressional Black Caucus chairman Elijah E. Cummings, Nancy M. Zirkin of the Leadership Conference on Civil Rights and George Mason University professor Roger W. Wilkins.

Others declined to comment. Cheryl Brown Henderson, daughter of the late Rev. Oliver L. Brown, namesake of the historic Brown decision, said she didn't want to weigh in on the controversy. Neither did the Rev. Fred D. Taylor of the Southern Christian Leadership Conference or National Bar Association President Clyde Bailey.

Only Shirley J. Wilcher, a former Clinton administration official who later headed Americans for a Fair Chance, which promotes affirmative action, was willing to talk about the LDF.

"The reputation and the hard work of this organization precedes itself," Wilcher said. "It dates back decades and I have no doubt that it will continue to serve causes of equal justice in society. I've lived in this town long enough to know that issues like this blow over. What's important is that we continue to keep the doors of opportunity open."

Daly, of the Coalition for a Fair Judiciary, counters that argument. She said the LDF pre-judged how Gibbons would vote on the affirmative action case and decided to take action.

"Equal justice under the law is probably one of the most worthy goals, yet I don't see this as equal justice," Daly said. "A Kennedy thumb was put on the scale because [the LDF] wanted a certain outcome and they were going to do anything it took to have the outcome they wanted."

This fight isn't going to end anytime soon, said Sean Rushton, executive director of the conservative Committee for Justice. He said the LDF has aligned itself with Senate liberals, and as a result carries weight even with uncontroversial nominees like Gibbons.

"The NAACP Legal Defense Fund has had a tremendous positive impact and in the past a good legacy," Rushton said "But in recent decades it has allowed itself to become just another Democratic attack group. It increasingly takes an ends-justify-the-means approach to the battle over the courts."

Bills Comment: When will minorities stop taking folks like these for granted?

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