Memo Theft

Monday, February 16, 2004; Page A26

FOR MONTHS, Democrats and Republicans have agreed that there's a scandal somewhere in those Democratic judicial nomination memos that were leaked last year to the Wall Street Journal editorial page. But they've been unable to agree on what the scandal was. For many conservatives, the issue was what the memos said -- their portrayal of Democratic Senate staffers at the beck and call of liberal interest groups. Democrats meanwhile ignored the memos' embarrassing contents and focused on the way they were pilfered from Democratic computers by Republican staff. Last week, as the magnitude of the snooping became clear, Republicans shifted gears and agreed with their Democratic colleagues that the acquisition of the memos was wrong and possibly criminal.

The change is attributable to an investigation by the Senate's sergeant at arms -- an investigation that, though not yet finished, has concluded that thousands of memos were improperly taken. The investigation led to the resignation of a lawyer from the office of Senate Majority Leader Bill Frist, a lawyer who had worked on the Judiciary Committee and had tapped into the memos. Another Judiciary staffer has also left. Mr. Frist and Committee Chairman Orrin G. Hatch (R-Utah) had taken a beating from conservative groups for responding seriously to Democratic complaints, and Republican senators had previously complained about the investigation itself. But after senators were briefed on the status of the investigation, Republicans supported Mr. Hatch's actions and rejected the criticism by outsiders. Some suggested that Republican memos had been tapped as well.

The content of the Democratic memos is, indeed, offensive. In memos to Sens. Richard J. Durbin (D-Ill.) and Edward M. Kennedy (D-Mass.), staffers announce that nominee Miguel Estrada is "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." Nominees are characterized as "Good," "Bad" and "Ugly." A liberal lobbyist is described as urging that nominees not be confirmed to the U.S. Court of Appeals for the 6th Circuit until it finishes hearing the University of Michigan affirmative action case. And one document declares that "most of Bush's nominees are nazis."

That said, the effort by Republican staffers to acquire -- apparently over a long period -- large numbers of confidential Democratic memos and use them for political advantage is quite ugly. We don't mean to sound pious about leaks; newspapers depend on them. But the issue here is less the leaking of the information than its apparent theft in the first place. It isn't much of a defense to suggest that the material was not adequately protected on a shared network and was therefore fair game. If Democratic staffers had left their office doors unlocked, would it be open season on their file cabinets? Senate staffers appear to have done the electronic equivalent of rifling through one another's desks in a systematic and sustained effort to gather intelligence. Mr. Hatch deserves credit for insisting -- in the face of considerable party pressure -- that, even in the midst of a partisan war over judicial nominations, such behavior will not be tolerated.