Roundup of Posts on Olati Johnson
Surprisingly, there's still some posting going on regarding an New York Sun editorial attacking Columbia's hiring of Olati Johnson. (My post on the subject is here .) For those keeping track, here's the back and forth:
- The original New York Sun editorial.
- An American Thinker post supporting the Sun's view.
- A De Novo post by Columbia-blogger PG arguing that allegations of Lee Bollinger's influence are untenable.
- Dean Schizer responds to the New York Sun (via The Right Coast).
- Professor Bainbridge updates his post with new information from Columbia professor Avery Katz. Katz specifically argues that CFIF could not prove that the memo taken from the Senate Judiciary Committee's server was reflective of "what actually happened in Kennedy's office." That's an intriguing assertion, and one I hadn't heard before. It makes sense as a possibility: a draft taken off a hard drive may never have been printed.  (A similar letter from Prof. Katz appears at the Right Coast, along w/ Dean Schizer's letter.)
- Finally, the author of the original editorial, Curt Levey, responds to critics at the blog of the Committee for Justice. (This blog even got a humble mention, which explains one uptick in my server logs.)
Near as I can tell, that's it. Much like PG, I still find Levey's original allegations unlikely in the extreme, and without further evidence they can pretty much be relegated to the realms of conspiracy theory.
Indeed, if there's any concern over the appointment, I'd think Levey's looking in entirely the wrong place. The one at least somewhat undisputed allegation  to come out of Memogate involved Ms. Johnson forwarding an email misdirected from a Republican staffer to Democratic colleagues. As I mentioned at the time, I'd not think such a thing was illegal under the CFAA (though that statute is notoriously broad-reaching), and quite probably it doesn't constitute an ethical breach. Yet let's face it: capitalizing on an opponent's error in a highly partisan environment may be legal, ethical and even expected, but it doesn't pass the "do unto others" test. Were I a 1L again and assigned to Prof. Johnson's class--and a grade very important to law review, jobs and my future thus sat in her hands--would I feel comfortable, particularly were I a more outspoken conservative? I don't know. 
That, however, is a relatively minor concern. Indeed, if you want to mark such worries down as grade paranoia in a law student, you must realize that it's not half so off the ranch as Levey's original contention: that any offer from Columbia is inevitably tainted by Lee Bollinger, and that the faculty is inherently conflicted by his presence.  There's is no evidence the university president was involved in the decisionmaking, and reason to suspect he wasn't. Such shenanigans would require the silent and complicit consent of any conservative in the faculty, the staff and even in the student body. I find it close to incredible that if Johnson were appointed for any reason other than her scholarship--by all accounts excellent--Columbia students would hear no gossip, but learn it first in the unbridled speculations of a New York Sun editorialist who provides not a shred of documentation to back up his words. Heck, the Sun can't even drag the reporter's favorite playmate, the 'unnamed source,' out of the shadows!
This kind of "hit piece" in which a reporter rambles about appearances of impropriety and murmurs darkly about possible payoffs does nothing but wound the credibility of the reporter. Maybe Levey's co-blogger John Lott could explain how this is just as true when attacking professors as it is when one targets Justice Scalia?
: Prof. Katz's argument with regards to the state ethics committee seems a bit strained: "In particular, the complaint that CFIF filed in New York state, the jurisdiction where Olati Johnson is licensed to practice law, was summarily dismissed on the merits -- a fact not mentioned in the Sun editorial." For the record, the ethics complaint against Republican Manuel Miranda, the other New York lawyer in Memogate, seems to have been dropped as well. I'm reminded about the humorous/apocryphal advice regarding how to guess on the MPRE: if asked what a lawyer is forbidden to do, never guess the option that seems least or most ethical. Is that really a guideline for what we want in professorial conduct?
: One should take "undisputed" with a grain of salt here. I don't think I remember anything in that confrontation that wasn't disputed to some degree. I'm certain that I don't have all the facts.
: For my liberal readers who find such a thought unthinkably implausible, I invite them to imagine that their 1L Con Law professor was the aforementioned Manuel Miranda. Then again, Prof. John Yoo seems to get along well enough at Berkeley. Well, okay, maybe not, but I can't find any Boalt students blogging about grading concerns.
: Levey writes:
"Moreover, as my op-ed notes, the faculty should have thought about the message it was sending to Columbia's law students concerning ethics and conflicts of interest."
I think the message was right on target. Even assuming the Memogate documents were completely and utterly true in every way, Levey points to nothing that shows President Bollinger had anything to do with them (or even that he knew of them). I'm honestly befuddled at how Levey thinks we're being mislead about conflicts and ethics. I can't see him quoting a canon or a rule.
It's touching that Levey is worried about my education, so let me put him at ease: I do know that we don't get to make up conflicts rules for our convenience as we go along. There endeth the lesson.