Bollinger on the Spot

This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

The New York Sun

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 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 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 of 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 the Michigan 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.


As a professor of George Washington University law school, Jonathan Turley, said: “The fact that this kind of discussion occurred at all is outrageous,” no less that it succeeded in delaying Ms. Gibbons’s confirmation. It is no wonder that Elaine Jones abruptly announced her resignation weeks after an ethics complaint concerning Memogate was filed against her with the Virginia State Bar. Which brings us back to Columbia University.


In light of Ms. Jones’s resignation and the Justice Department investigation still hanging over the head of Manuel Miranda – the whistleblower who disclosed the Democratic memos – 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.


I don’t believe that Olati Johnson should be punished for what she did, but I would hate to think that she is being rewarded for it. Nonetheless, my beef is not with Ms. Johnson. In fact, I debated her once and found her to be personable, extremely articulate, and exceptionally bright. 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 implications of 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. Let’s start with the biggest one. If Ms. Johnson landing at Columbia is not just a strange coincidence, what is it? Is it an expression of Mr. Bollinger’s gratitude or even an explicit payback? Is it possible that Mr. Bollinger sees nothing wrong with what Ms. Johnson did, because he and the University of Michigan were also involved in the Sixth Circuit scheme? And, if it is just a coincidence, did Mr. Bollinger consider that Ms. Johnson’s hiring might, nonetheless, result in the appearance of impropriety to anyone doing even a cursory Google search on Ms. Johnson’s name? Moreover, did Columbia take into account the potential conflict between Mr. Bollinger’s interests and those of the university? Finally, did the Law School think about the message it was sending to its students concerning ethics and conflicts of interest?


I don’t pretend to know the answers to these questions. And it is entirely possible that Mr. Bollinger is guilty of poor judgment rather than anything more malfeasant. But only he and his university can fully address the issues raised here. They should do so forthrightly and without delay.



Mr. Levey is general counsel of the Committee for Justice, whose mission includes the promotion of a fair judicial confirmation process. While previously working at the Center for Individual Rights, Mr. Levey and his colleagues represented the plaintiffs in the Michigan affirmative action cases.


The New York Sun

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