Sixth Circuitry

Let us state at the outset that we think the Sixth Circuit Court of Appeals was wrong to rule this week that the University of Michigan Law School could vary its standards of admission based on the color of an applicant's skin. This is racial discrimination, pure and simple, and it should not be taking place in 21st century America, especially at one of the nation's pre-eminent institutions of higher education.

Our subject for the day, however, isn't the merits of Grutter v. Bollinger but the ethics and credibility of the federal court that decided it. For this, we call your attention to a remarkable appendix that one of the Sixth Circuit judges attached to his dissent. Judge Danny Boggs describes in that appendix the outrageous judicial manipulation that may have rigged the outcome of this case, which was decided by a 5-4 split.

The details are too Byzantine to recount in full here, but the gist is that, according to Judge Boggs's account, Chief Judge Boyce Martin ignored the "long-established rules" of the court in deciding how to deal with Grutter. Judge Boggs is a Reagan appointee; Judge Martin was appointed by Jimmy Carter.

According to Judge Boggs's account, corroborated by another judge, Judge Martin assigned himself to the three-judge panel that was considering Grutter, bypassing the usual random-selection process. He then delayed telling the court, which then had 11 active members, that the university had petitioned for a full-court or en banc review. Instead, he waited until two Republican-appointed judges had taken senior status, thereby losing the right to sit in an en banc hearing. It's not unusual for judges to time their move to senior status so that they can participate in cases that interest them and it's reasonable to assume that Grutter, which dealt with one of the most contentious legal issues of the day, would have been such a case.

Meanwhile, at the same time the Sixth Circuit was sitting en banc last December, over in Washington, Senate Judiciary Chairman Pat Leahy was refusing to give President Bush's five nominees to that same court so much as a hearing. There are currently eight openings on the 16-member Court and it's more than likely that Grutter's outcome would have been different if Mr. Bush's picks hadn't been held hostage in the Senate.

It is extremely rare, perhaps unprecedented, for a federal appeals judge to publicly chastise a colleague or to reveal the inner workings of his court, and Judge Boggs is taking some heat from the black-robe set. He defends himself in a footnote: "Legitimacy protected only by silence is fleeting. If any damage has been done to the court, it is the work of the actors, not the reporters."

Grutter now goes to the U.S. Supreme Court for review and, we hope, correcting. Who's going to restore the credibility of the Sixth Circuit?

Interesting background and political behavior of the judges involved in this affirmative action case. The shananigans by Judge Boyce Martin virtually guarantees a review by the Supreme Court. If this editorial is substantially accurate, a Supreme Court ruling will also be a judgement on judicial activism, not just affirmative action. Any one able to get a link to the actual Judge Bogg's footnote?

Every citizen in the USA should be made aware of the end result of Daschle and Leahy's program in the Senate Judiciary Committee which tries to reduce republic representation by judicial activism, with the full support of trial lawyer groups.

An exerpt from today's Cincinnati Post:

"...This week's decision was a 5-4 ruling, from an appeals court that is supposed to have 16 judges and which has been characterized of late by a rancorous split between its surviving conservative and liberal members.

Unfortunately, the opinion is notable not only for its legal conclusions, but also for its procedural irregularities and for the published sniping between several of the judges. (To cite but one example, Judge Danny Boggs of Kentucky included in his dissenting opinion an appendix outlining what he believes were outcome-driven procedural maneuvering. That prompted a colleague, Judge Karen Nelson Moore of Ohio, to assert that Boggs' published opinion ''marks a new low in the history of the 6th Circuit.'')

The Supreme Court can and should signal its unhappiness with this kind of infighting. This is the same type of judicial warfare evident in recent death penalty cases involving the 6th Circuit, and it is undermining public confidence in the court..."

The dissenting opinion in this case is dynamite and makes for a great read, if you have the time. I'm not at all good at this sort of thing, but try the following as an address:

http://pacer.ca6.uscourts.gov/cgi-bin/getopn.pl?OPINION=02a0170p.06

Interesting quote from dissenting opinion:

"ALICE M. BATCHELDER, Circuit Judge, dissenting. I concur in Judge Boggs's careful and scholarly dissent. I write separately to say that I concur in all of that dissent, including the exposition of the procedural history of the case. In her separate concurrence, Judge Moore expresses her belief that by revealing that history, Judge Boggs--and I, by concurring--undermine the legitimacy of the court and do harm to ourselves, this court and the nation. I believe that exactly the opposite is true. Public confidence in this court or any other is premised on the certainty that the court follows the rules in every case, regardless of the question that a particular case presents. Unless we expose to public view our failures to follow the court's established procedures, our claim to legitimacy is illegitimate.

Judges were not selected by computer allotment; they got involved after certain judges assumed higher courts and the Circuit Court was stacked in the liberals favor. Hmmmm. Impeachable offenses? Wonder what SCOTUS will have to say about this.

On a related topic, remember that the Senate Judiciary Committee votes Thursday May 23 on the nomination of Judge Brooks Smith to the Third Circuit Court of Appeals. This is a Bork Alert.

Thank you aristeides for the Fund link. Interesting quote from the Fund article: "Democrats have decided that the judicial activism that has dominated the courts for four decades now is too important to have niceties such as the president's power to appoint the judiciary interfere with it. One might dismiss such a dispute as so much partisan mud-wrestling, but we're debating something as basic as the equal-protection provisions of the Constitution."

Meat for discusssion on a conservative forum, yes?

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