- The Washington Times - Tuesday, April 13, 2004

A conservative watchdog group plans to file a formal ethics complaint today against a former Judiciary Committee staffer to Sen. Edward M. Kennedy, arguing that the lawyer tried to influence a landmark affirmative action case in which she had participated.

The Center for Individual Freedom says Olati Johnson “violated both the spirit and the letter of the ethical rules and obligations she was bound to uphold” when she urged Mr. Kennedy in a memo to stall the nomination of a conservative judge to the panel considering the challenge to the University of Michigan’s affirmative action program.

“It is hard to imagine a clearer case of professional misconduct, especially since Ms. Johnson, herself, memorialized her ethical misgivings in a Memorandum before ignoring those concerns,” Jeff Mazzella, the center’s director, wrote in a formal complaint to the Disciplinary Committee of the New York Appellate Court.

Ms. Johnson now works for the American Civil Liberties Union Foundation in New York.

Before serving as Mr. Kennedy’s counsel to the Judiciary Committee, Ms. Johnson worked as a lawyer for the National Association for the Advancement of Colored People Legal Defense and Educational Fund, which represented students supporting the race-based admissions program at Michigan in the case that eventually reached the Supreme Court.



The complaint stems from an April 2002 memo in which Ms. Johnson urged Mr. Kennedy, a Massachusetts Democrat and influential member of the Senate Judiciary Committee, to stall the nomination of Tennessee Judge Julia S. Gibbons to the 6th U.S. Circuit Court of Appeals.

“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,” Ms. Johnson wrote to Mr. Kennedy.

Judge Gibbons waited more than twice the average time of other nominees before being confirmed after the 6th Circuit voted 5-4 to uphold the affirmative action program.

Ms. Johnson seemed to have ethical doubts when she wrote the memo.

“Melody and I are a little concerned about the propriety of scheduling hearings based on the resolution of a particular case,” she wrote, referring to Melody Barnes, Mr. Kennedy’s chief counsel at the time. “Nevertheless, we recommend that Gibbons be scheduled for a later hearing: the Michigan case is important.”

The cornerstone of Mr. Mazzella’s complaint against Ms. Johnson is a section of the New York court’s rules of professional conduct stating that a “lawyer serving as a public officer or employee shall not … [p]articipate in a matter in which the lawyer participated personally and substantially while in private practice or non-governmental employment.”

Ms. Johnson’s association with the affirmative action case was divulged last week by Mr. Mazzella’s group.

Sen. Jeff Sessions, Alabama Republican, called the development “stunning” and said he would look into it. He is chairman of the Judiciary subcommittee on administrative oversight and the courts.

Ms. Johnson did not return a phone call yesterday seeking comment.

ACLU lawyer Christopher A. Hansen, who also worked on the Michigan court case in support of the affirmative action program, said last week that Ms. Johnson is now a colleague.

“It seems to me it would be a mistake to comment,” he said. “I’m troubled by all the swirling loyalties here.”

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