IN GRUTTER V. BOLLINGER, the 6th U.S. Circuit Court of Appeals in Cincinnati last week upheld racial and ethnic preferences in admissions to the University of Michigan Law School. Liberals are celebrating a rare victory for affirmative action in the courts. However, the more profound impact of Grutter may lie in the manipulation of the court to achieve this outcome, exposed by some of the dissenting judges.
Thus, along with his dissent, Judge Danny J. Boggs filed an unusual "Procedural Appendix," which he deemed "important [to] be placed in the record as an explanation of the manner in which this case came before the particular decision-making body that now decided it." First in December, then again last week, the case was reviewed by panels whose composition was determined by political machinations.
Under the rules of the 6th Circuit, cases are normally heard by three-judge panels, to which members of the court are randomly assigned. For Grutter, however, Chief Judge Boyce Martin, a Jimmy Carter appointee, assigned himself to the panel.
A party who loses before the randomly selected panel may seek "en banc" review, by all the judges on the court. The Grutter parties, Boggs explained, submitted a request for en banc review on May 14, 2001. At the time, 11 judges were active in the circuit. Mysteriously, the request was not circulated to all the judges. Three months later, after 2 conservative judges had taken "senior status" and retired from active duty, the balance of the court shifted. Only then was the petition for en banc review circulated to everyone.
Thus, the court that decided Grutter on a 5-4 split last week was distinctly different from the one that would have heard it if the en banc request had not been initially concealed. As Judge Alice Batchelder wrote in her separate dissent, "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."
The larger political background here is the deadlock in confirming federal judges in Washington. Normally the 6th Circuit has 16 judges. Right now, 8 seats are vacant (one of the 9 judges ruling in Grutter also took "senior status" in December 2001). Bush has sent the names of 7 nominees to the Senate, but not one has been confirmed thanks to the Democrats' stall.
As the 6th Circuit has shrunk in half, political chicanery has set in, of which the Michigan affirmative action case is not the sole example. In In re John W. Byrd, Jr., a convicted murderer, sentenced to be executed, sought post-conviction relief. After the court denied a habeas corpus petition challenging his conviction, he sought leave to file a second such petition. Last October, the 6th Circuit remanded his case "for the development of a factual record sufficient to permit sua sponte consideration of a request for leave to file a second petition for a writ of habeas corpus."
In doing this, the majority usurped the district court's fact-finding authority. According to Judge Boggs's dissent, "under the statutes, we are simply not authorized to do anything with a motion to file a second or successive petition other than to grant it or deny it." Terming the majority's action "lawless"--a description also adopted by fellow dissenter Judge Richard Suhrheinrich--Boggs observed, "This activity has spun so far out of the authorized sequence that it may even be doubted whether the Supreme Court may be thought to have jurisdiction to stay it at this point."
At the height of the presidential butterfly-ballot and chad controversy in late 2000, the nation's confidence in the judiciary was sorely tested. Now, a year and a half later, the Senate's cynical logjam in approving judicial nominations is encouraging jurists to manipulate calendars and engage in other procedural shenanigans that are beneath them and that can only further damage the honor of the courts.
Dov B. Fischer, an attorney and political affairs commentator, clerked for the Hon. Danny J. Boggs on the 6th U.S. Circuit Court of Appeals in 1993-94.