The Right Coast

March 28, 2006
Scandal at Columbia University?
By Gail Heriot

Curt Levey in an op-ed for the New York Sun has the following story:


Columbia University and its president, Lee Bollinger, have some explaining to do. The university recently announced that its law school had awarded a coveted faculty position to Olatunde "Olati" Johnson, a woman with a scandal-plagued connection to Mr. Bollinger.

Ms. Johnson played a central role in the two-year-old Senate scandal known as memogate, which involved, most notoriously, her recommendation that the judicial confirmation process be rigged to influence the outcome of a pair of pending federal court cases. The cases were the landmark challenges to affirmative action at the University of Michigan, and the defendant was the university's president at the time, Lee Bollinger. That Ms. Johnson should now find herself working under Mr. Bollinger raises questions about a conflict of interest and a possible payoff for services rendered.

The scandal came to light in late 2003 with the disclosure of memos prepared by Ms. Johnson and other Democratic staffers on the Senate Judiciary Committee. The memos--whose authenticity was never denied--disclosed that Senate Democrats were cynically manipulating the judicial confirmation process, and that liberal outside interest groups were calling the shots on which of the president's nominees would be blocked. It was all very unseemly, though probably not unethical--with one exception.

In April 2002, Ms. Johnson recommended a delay in the Judiciary Committee's hearing for Julia Smith Gibbons, a nominee to the U.S. Court of Appeals for the Sixth Circuit, the court that was poised to decide the University of Michigan cases. Johnson, who was working for Senator Kennedy (a Democrat of Massachusetts), was surprisingly blunt about the reason for the delay: "The thinking is that the current 6th Circuit willsustain the affirmative action program, but if a new judge with conservative views is confirmed before thecase is decided, that new judge will be able, under Sixth Circuit rules, to review the case and vote on it."

Ms. Johnson conceded that "the 6th Circuit is in dire need of additional judges" and that Ms. Gibbons was an"uncontroversial" nominee. And she recognized the ethics problem, noting that she and another Kennedy staffer "are a little concerned about the propriety of scheduling hearings based on the resolution of a particular case." Nonetheless, Ms. Johnson recommended a delay because "the Michigan case is important."

Ms. Johnson's recommendation grew out a request by her previous boss, Elaine Jones, president of the NAACP Legal Defense and Educational Fund. Ms. Jones and Ms. Johnson had a big interest in the outcome of theMichigan cases. Ms. Jones was serving as counsel to an intervening party seeking to defend Lee Bollinger from the charge that his university's race-based undergraduate admissions system was unconstitutional. Ms. Johnson was her co-counsel on the case until moving to the Senate months earlier. It turned out to be a fortuitous move, with Ms. Johnson now in a position to help her former boss and clients, as well as Mr. Bollinger.

And help she did. Ms. Gibbons's hearing in the Judiciary Committee was delayed. Then, when the Committee finally approved her, Ms. Gibbons's confirmation was delayed almost another three months. Only four of 101 judicial nominees waited longer. A full discussion of the ethics rules that govern all attorneys, including Ms. Johnson and Ms. Jones, is beyond the scope of this article. However, a few things should be obvious to even the layman. Ms. Johnson's participation in the Sixth Circuit scheme would have been avoided had she, upon moving to the Senate, recused herself from all matters involving the Michigan cases or Sixth Circuit nominations. Failing that, Ms. Johnson should have recognized that an attorney is duty-bound to refrain from improperly influencing a court outside the confines of normal legal proceedings.

That duty is foremost among the ethical principles governing attorneys because the integrity and impartiality of the judicial system depends on it. Each of us need to know that, when we go into court,the lawyers for the other side have not bribed the judges, surreptitiously packed the jury pool, or--as Ms. Johnson and Ms. Jones did--secretly manipulated which judges sit on the court.

In light of [the ensuing scandal], I was surprised to hear of Olati Johnson's good fortune. First, Columbia awarded her the prestigious Kellis Parker Fellowship in Law and now, a coveted faculty position at one of the nation's top law schools. Then it dawned on me that Lee Bollinger is the president of Columbia University and a member of its law school faculty. I began to wonder whether it is mere coincidence that Ms. Johnson wound up at the university headed by the very person who stood to gain the most from the delay in Ms. Gibbons's confirmation. ... Had she gotten a position at virtually any other law school, the assumption would be that the school had impartially concluded that Ms. Johnson's talents outweighed the ethical implicationsof her involvement in Memogate. Unfortunately, because of the positions held by Lee Bollinger, Columbia could not make such a judgment impartially even if it tried. As a result, there are now serious questions surrounding Lee Bollinger and his university...."

((Sadly, the Memogate mess that Curt is writing about here was not the only scandal associated with the Sixth Circuit's decision in Grutter v. Bollinger. Judge Danny Boggs, who dissented in the case took the highly unusual step of including a "Procedural Appendix" to his dissenting opinion in which he protested improper procedural manipulations by Chief Judge Royce Martin designed to ensure that the University of Michigan's controversial racial preference programs would be upheld. One of the unhappiest aspects of the race-based admissions policies is their tendency to result in this kind of deceit and manipulation. Once the colleges and universities are themselves infected, the problem spreads to the courts and to the Senate. And there's no end in sight. Whether the hiring of Ms. Johnson at Columbia is part of it or just a conincidence we'll probably never know.))