Duck Season

Jack Shafer on the judiciary committee memo "scandal":

If the Democrats' files weren't password-protected--and I've yet to see anybody report that they were--it's hard to imagine that the Republican clicking his way to them committed a computer crime. Naughty and unethical, maybe, and maybe deserving of a Senate sanction. But the criminal outrage of the century by political dirty tricksters engaging in surveillance, no.

Byron York advanced this opinion and more last month in the Hill. He complains that the leaks inspired anger from the Times editorial page, which decried "partisan hacking" in early December but neglected to note the very newsworthy substance of the leaks. (Times reporter Lewis also neglects to mention the intriguing information contained in the leaks. In its coverage, the Washington Post has not shied from printing the info.) York writes, "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."

And what were on the memos?

They dealt with how to Bork President Bush's judicial nominees, the need to postpone nomination hearings until after the 2002 elections, and the degree to which the Democrats were taking their marching orders from such interest groups as the NAACP, not to mention the language used to describe conservative nominees deserving of a filibuster ("nazis," according to the Washington Post).

Shouldn't the bigger scandal be the fact that Democrats are catering to interest groups by filibustering judicial nominees, that some nominees were delayed so that they wouldn't be on the bench in time to rule on the Michigan University affirmative action case (a big no-no for the lawyer on the case who lobbied the Democrats), and that in one memo it specified that a nominee's race was a reason for filibuster? It's not rare that one side publicizes embarrassing confidential communication by the other side that they uncovered. It is rare to discover that judicial nominees were blocked to affect a court case and to prevent someone of a certain race to be on the bench, in accordance to the wishes of interest groups. Despite that, the substance of the memos were ignored, and the focus is on the fact that they were acquired in a circumspect, but not illegal, way. Of course, it doesn't take a genius to figure why that is ...

I wonder how the Globe would have covered the story had a Democratic staffer stumbled upon a stack of incendiary strategy memos by Republican staffers. If she shared them with her colleagues and then with the Globe, would the Globe have eagerly printed excerpts of them? You betcha. And would Republicans scream holy hell and demand an investigation after the Globe went to press? You betcha. And would the Globe and the Times be editorializing about the investigation's "chilling effect" on dissent and free speech? You betcha, again.

Clearly, whenever the Senate investigates itself, it's news. Likewise, the identity, motivations, and modus operandi of these leakers is news, too. But, like York, I can't help but think there's a journalistic double standard operating here in which partisan leaks to conservative journals and journalists (the Novak-Plame incident, for another example) are treated as capital crimes, but partisan leaks that wound Republicans are regarded the highest form of truth telling.

Juan Non-Volokh has examples of when the shoe is on the other foot, with predictable results:

Last year, Senate Democrats sought to use stolen documents to impugn the integrity of 11th Circuit nominee William Pryor. Most news accounts focused on the allegations, not how they became public. Similarly, when Clarence Thomas was nominated to the Supreme Court (but before the Anita Hill story broke) someone on the U.S. Court of Appeals for the D.C. Circuit leaked Judge Thomas' forthcoming opinion in a controversial case to the press, a clear violation of the code of judicial conduct. The draft opinion made lots of news, but there was little, if any, discussion of how the unreleased opinion made it into the hands of the press.

An Instapundit reader has another example. The big scandal in this story continues to be the blocking of judicial nominees by Democrats with unethical and possibly racist motives, but I wouldn't be surprised if the media chooses to concentrate on how the memos were acquired.