March 27, 2006

Reason #23 for Liberals to Join Fed Soc

by PG

In discussion of this and other additions to our faculty, someone sent this link:

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.

This seems to me a fair point to raise about ethics. Why is a person who worked on a case making recommendations that relate to it? Sen. Kennedy should consider adopting some of the rules that law firms have about ensuring that there is no bias, nor appearance of impropriety, in having people who have worked for a client then take on a different role in which they could favor that former client.

However, the suggestions made by the NY Sun and linked by the "Thinker" and Prof. Bainbridge struck me as quite silly, and Prof. Bainbridge as a law professor -- unless UCLA does things totally differently from UTenn and Texas, the processes of which Glenn Reynolds and Brian Leiter respectively described and Bainbridge linked -- ought to know better. From the Sun:

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.

To my understanding, the Columbia University president has little role in hiring faculty in general, and particularly in the graduate schools. Frankly, nowadays the primary job of the president of a major university is to bring money in by maintaining positive PR, satisfying his constituencies, gladhanding alumni who have made good, etc. It's nice for him to be intellectually respectable (the president of my alma mater is reputed to speak twelve languages), but not vital. Indeed, becoming over-involved in faculty minutiae seems to be likely to lead to ruin, as in the example of Harvard's president Lawrence Sumners, who pissed off various professors by telling them how to do their job. I haven't seen President Bollinger at all this year, and saw him once last year only because I attended one of the town-hall style meetings he held to manage the mini-crisis over alleged anti-Jewish sentiment in the Middle Eastern studies department.

Instead of the fantasized scenario in which President Bollinger picks the law school's professors, the hiring committee suggests possibilities and the present faculty votes on whether to extend an offer; I think the dean can put in his two cents. Considering Dean Schizer's recent "outing" of himself as a former officer of the Yale Fed Soc, perhaps he has better cred among conservatives than Bollinger does. Bollinger is listed as a member of the Columbia Law faculty, but unlike, say, president emeritus Michael Sovern, who teaches legal methods every fall, I've never seen Bollinger listed as a professor for a course and as far as I know, he does not attend faculty meetings or vote on extending offers. Even if President Bollinger were involved in hiring Prof. Johnson, why would he want to give her anything? As co-counsel in the UMich case, she had quite enough personal interest in wanting the affirmative action program to stand; she had no need to do it for Bollinger, and he has no reason to reward her.

I'm willing to contemplate that Prof. Johnson may have acted inappropriately, not only in her specific suggestion but also by not quasi-recusing herself from dealing in matters where she had been an active participant before joining Sen. Kennedy's office. That her hiring is some sort of quid pro quo for President Bollinger, or that anyone except the most thoughtless* could deem it to have even the apperance of such, is ridiculous.

* I first wrote "witless" but rethought because Prof. Bainbridge certainly has his wits about him with regard to wine and securities, areas in which I'm profoundly ignorant and therefore respectful of those more knowledgeable. His post seems to have been an instance of auto-linking without necessarily thinking through the implications, something of which nearly all bloggers have been guilty.

March 27, 2006 01:36 AM | TrackBack