Former NAACP Attorney Olati Johnson
Wrote Controversial Staff Memo to Senator Kennedy
Revelation raises new ethics questions about judicial confirmations and the University of Michigan affirmative action cases
The Center for
Individual Freedom has learned the identities of two former aides
to U.S. Senator Edward M. Kennedy (D-Mass.) who, in a memo dated
April 17, 2002, recommended that the Senator delay confirmation
proceedings of Judge Julia Smith Gibbons to the U.S. Court of Appeals
for the 6th Circuit. The purpose of the delay was to influence the
outcome of the University of Michigan affirmative action cases,
then pending before that court.
then Judiciary Counsel to Senator Kennedy, wrote the memo. But immediately
prior to joining Senator Kennedys staff in September 2001,
Johnson was Assistant Counsel at the NAACP Legal Defense and Educational
Fund. There she served as co-counsel for Defendant-Intervenors in
the University of Michigan undergraduate school affirmative action
case before the 6th Circuit.
at the time Chief Counsel to Senator Kennedy on the Senate Judiciary
Committee, joined in the memos recommendation. In all copies
of the memo that have been made public, Johnsons and Barnes
names have been redacted.
recommendation was based on a telephone request from Elaine R. Jones,
President and Director-Counsel of the NAACP Legal Defense and Educational
Fund. Jones also served as counsel for Defendant-Intervenors in
the undergraduate school case.
that Johnson authored the memo, responding to a request from her
former colleague, raises significant new ethics questions regarding
the highly publicized affirmative action cases and Democratic efforts
in the U.S. Senate to obstruct judicial confirmations. As co-counsel
in the University of Michigan case, Johnson exceeded the bounds
of acceptable advocacy with her recommendation to Senator Kennedy.
Senator Kennedys office in September 2003, Johnson went to
work for the American Civil Liberties Union, where she is currently
employed. Johnson graduated from Stanford Law School, after which
she clerked for Judge David Tatel of the U.S. Court of Appeals for
the D.C. Circuit and for Justice John Paul Stevens of the U.S. Supreme
was Chief Counsel to Senator Kennedy from December 1995 until March
2003. She is currently a Principal with The Raben Group, a legislative
law firm in Washington, D.C. Barnes is a graduate of the University
of Michigan Law School.
along with Barnes, raised the issue of ethical concerns in the April
17, 2002, memo before making her recommendation. "[Melody Barnes]
and I are a little concerned about the propriety of scheduling hearings
based on the resolution of a particular case," Johnson wrote.
The memo specified the rationale 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 6th
Circuit rules, to review the case and vote on it."
The memo also
noted that the "6th Circuit is in dire need of additional judges"
and that Judge Gibbons was an "uncontroversial nominee,"
two factors that indicate no reason to delay confirmation other
than to affect the outcome of the case in question. No one, including
Elaine Jones, has denied the authenticity of the memo or its factual
14, 2003, the Wall Street Journal published excerpts from
the Kennedy memo, along with other memos to Democratic members of
the Senate Judiciary Committee. Both the Wall Street Journal
and The Washington Times, which also received and published
the memos, have maintained the anonymity of their sources.
of the memos provoked demands for investigation from Democrats on
the Senate Judiciary Committee based on allegations that the memos
had been "stolen" or accessed through "computer hacking."
Those assertions resulted in an inconclusive investigation by Senate
Sergeant-at-Arms William H. Pickle, the results of which were publicly
released as the so-called "Pickle Report" on March 4,
Two former Republican
staffers, Jason Lundell and Manuel Miranda, have acknowledged downloading
and reading some of the memos totaling 4,760 currently in
the hands of the Sergeant-at-Arms but both deny leaking them
to the press as well as any wrongdoing in obtaining them. The Sergeant-at-Arms
investigation determined that as many as 150 people had virtually
unrestricted access to the memos.
While the Judiciary
Committee initiated the investigation into the disclosure of the
memos within days of their publication, calls to investigate the
content of the memos have been met with Republican silence and Democratic
calls for more investigations into who disclosed the memos.
2, 2003, Judicial Watch, a government watchdog group, filed a complaint
with the Senate Ethics Committee, specifically citing the Kennedy
memo as sufficient evidence to launch an investigation into ethics
abuses. No response has been forthcoming.
3, 2003, the Center for Individual Freedom, along with the Coalition
for a Fair Judiciary, the Congress of Racial Equality, and Project
21, filed an ethics complaint against Jones with the Virginia State
Bar, where she is admitted to practice. The Virginia State Bar requires
confidentiality in its ethics proceedings and thus details cannot
be publicly discussed, but Legal Times has reported that
Jones "brought in David Kendall of Williams & Connolly,
former Virginia Governor L. Douglas Wilder, and New York University
law professor Anthony Amsterdam to represent her."
a prominent criminal defense lawyer based in Washington, D.C., known
publicly for representing President Bill Clinton during the Monica
Lewinski scandal, was an Associate Counsel at the NAACP Legal Defense
and Educational Fund for five years and currently sits on the organizations
Board of Directors.
On January 15,
2004, Elaine Jones abruptly announced her resignation as President
and Director-Counsel of the NAACP Legal Defense and Educational
Fund, effective May 1, 2004, following publication of the memo and
the resulting ethics complaint. She has held the position for 11
years. The New York Times described staff and director reaction
to the announcement as "widespread shock." The Times
also reported that "Jones said her decision to step down
was motivated solely by a desire to devote more time to her health
and personal life." A spokesperson for Jones has subsequently
denied that the Kennedy memo had anything to do with her resignation.
In the 2002
Annual Report of the NAACP Legal Defense and Educational Fund, Jones
described the University of Michigan cases as "the most important
civil rights cases in 25 years." Based on mounting, credible
evidence of wrongdoing, they also may be the most tainted.
are subject to the rules of professional conduct adopted by the
state bars where they are admitted and the courts before which they
practice. Foremost among these ethical imperatives is the principle
that a lawyer is an "officer of the court" charged with
protecting the integrity, independence and impartiality of the judicial
system. A lawyer violates this ethical obligation when he or she
seeks to improperly influence a court outside the confines of legal
proceedings, especially when the lawyer has a case pending before
the judiciary. As the Supreme Court has stated, a lawyer is "subject
to ethical restrictions
to which an ordinary citizen would
not be" because a lawyer "is not merely a person[,]
[h]e is an intimate and trusted and essential part of the machinery
of justice, an officer of the court in the most compelling
agree that an attempt to manipulate the composition of the 6th Circuit
in order to secure a favorable outcome raises serious ethical questions.
When asked to comment on the Kennedy memo by Charles Hurt of The
Washington Times, George Washington University law professor
Jonathan Turley said, "It raises very serious questions about
propriety. On its face, there is an element of complicity and dishonesty.
This is certainly not what the Framers intended when they gave the
Senate the powers of confirmation. The fact that this type of discussion
occurred at all is outrageous."
George Mason University Foundation Professor of Law and one of the
best known and most widely cited scholars on legal ethics and constitutional
law, agreed that any attempt to manipulate which judges would hear
and decide a pending case raised serious ethical concerns. Commenting
on the fact that both the request and the recommendation to Senator
Kennedy to delay confirmations to the 6th Circuit came from lawyers
participating in the University of Michigan undergraduate case,
Professor Rotunda said, "I do not believe that counsel in a
case may collude to manipulate the make-up of federal court panels
that hear their litigation; if that is what happened, we should
all be concerned."
Smith Gibbons was unanimously confirmed to the U.S. Court of Appeals
for the 6th Circuit by the U.S. Senate on July 29, 2002,
but only after that court had ruled in favor of the position advanced
by Jones, Johnson and Barnes. President Bush sent Judge Gibbons
nomination to the U.S. Senate on October 9, 2001.
conducted by The Washington Times showed that in the two-year
period during which Judge Gibbons was confirmed, "the average
wait between hearing and confirmation was 33 days excluding recesses.
Judge Gibbons waited 81 days." In that same two-year period,
101 nominees were confirmed. Only four waited longer than Judge
Gibbons, and three of those were considered "controversial."
If Jones believed,
on April 17, 2002, that the "current 6th Circuit [would] sustain
the affirmative action program," she had reason, whether or
not she understood how that court's composition had been engineered.
Hers was not the first effort to stack the judicial panel.
The en banc
panel of the 6th Circuit that actually reviewed the University of
Michigan law school case consisted of nine judges, and issued a
five-to-four decision in favor of the law schools affirmative
action program. But when the petition for en banc review
was filed, eleven 6th Circuit judges had been eligible to sit on
the panel and decide the case. (The University of Michigan undergraduate
school case was heard by the same nine-judge panel, but was taken
by the U.S. Supreme Court before the 6th Circuit was able to issue
An almost unheard
of "Procedural Appendix" filed by dissenting Judge Danny
J. Boggs charged that the Chief Judge at the time, Boyce F. Martin,
Jr., withheld circulation and knowledge of the petition for five
months, until two conservative judges went into semi-retirement,
thus rendering them ineligible to sit on the case. Had the two judges
been properly notified of the petition when it was filed and maintained
their eligibility, they could have participated in the decision,
perhaps changing its outcome.
disclosure (which included other accusations of panel manipulation
against Chief Judge Martin and details of the 6th Circuit rules
violated) resulted in a judicial misconduct complaint filed by Judicial
Watch on January 30, 2003. On May 28, 2003, Acting Chief Judge Alice
M. Batchelder found that Chief Judge Martins actions "raise[d]
an inference that misconduct has occurred," although no discipline
would be imposed because reforms implemented by the court would
reduce "potential for further incidents." Although Judge
Martin maintains his innocence, Judge Batchelders decision
reports indicate that the Judiciary Committee of the U.S. House
of Representatives, which has the authority to initiate impeachment
proceedings against a federal judge, has been investigating Judge
Martins conduct, but no actions have been taken, no conclusions
The U.S. Supreme
Court decided both University of Michigan affirmative action admissions
cases on June 23, 2003, rendering the actions of and in the 6th
Circuit but a previous chapter in a long, divisive legal and social
dispute that will have ramifications for decades to come. That does
nothing to excuse wrongdoing by anyone along the way.
Prior to the
publication of this story, Senator Kennedys office, Olati
Johnson and Melody Barnes were given the opportunity to respond.
- To view a
redacted version of the Memorandum to Senator Kennedy dated April
17, 2002, click here.
[Posted April 6, 2004]