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The revelation that Johnson authored the memo,... raises significant new ethics questions regarding the highly publicized affirmative action cases and Democratic efforts in the U.S. Senate to obstruct judicial confirmations.

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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.

Olati Johnson, then Judiciary Counsel to Senator Kennedy, wrote the memo. But immediately prior to joining Senator Kennedy’s 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.

Melody Barnes, at the time Chief Counsel to Senator Kennedy on the Senate Judiciary Committee, joined in the memo’s recommendation. In all copies of the memo that have been made public, Johnson’s and Barnes’ names have been redacted.

The memo’s 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.

The revelation 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.

After leaving Senator Kennedy’s 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 Court.

Melody Barnes 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.

Johnson herself, 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 accuracy.

On November 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.

Public disclosure 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, 2004.

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.

On December 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.

On December 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."

David Kendall, 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 organization’s 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.

All lawyers 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 sense."

Legal ethicists 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."

Ronald Rotunda, 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."

Judge Julia 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.

An analysis 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 school’s 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 its ruling.)

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.

Judge Boggs’ 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 Martin’s 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 Batchelder’s decision stands.

Several news 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 Martin’s conduct, but no actions have been taken, no conclusions announced.

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 Kennedy’s office, Olati Johnson and Melody Barnes were given the opportunity to respond. None did.

  • To view a redacted version of the Memorandum to Senator Kennedy dated April 17, 2002, click here.

[Posted April 6, 2004]