Court
Divided Court
Divided
Charges of manipulating U-M case divisive, not justified
May 23, 2002
A cloud hangs over the U.S. 6th Circuit Court of Appeals because of charges by one judge that the court's chief judge effectively stacked the deck to achieve last week's landmark decision in support of the affirmative action admissions policy used by the University of Michigan Law School.
Time line Here's a timeline of the issues involved in the dispute among judges of the U.S. 6th Circuit Court of Appeals over the handling of the University of Michigan Law School affirmative action case: Dec. 5, 2000: Chief Judge Boyce Martin sends memo to Court Clerk Leonard Green stating not to send any new petitions for en banc hearings along until court has caught up on its back log of previous requests Dec. 22, 2000 - Judge Bernard Friedman of the U.S. District Court Eastern District of Michigan heard oral argument in Grutter v. Bollinger Jan. 28, 2001: Judge Suhrheinrich writes President Bush informing him of his intent to take senior status effective August 15, 2001 March 27, 2001: Judge Friedman rules U-M Law School admission's policy unconstitutional March 29, 2001: Judge Norris writes President Bush informing him of his intent to take senior status July 1, 2001 May 14, 2001: Petition for initial en banc hearing filed by Barbara Grutter July 1, 2001: Judge Norris takes senior status Aug. 15, 2001: Judge Suhrheinrich takes senior status Aug. 23, 2001: Grutter's petition for en banc hearing referred to the hearing panel. It was not received by entire panel until several days thereafter. Dec. 6, 2001: Grutter v. Bollinger heard by en banc court May 14, 2002: Sixth Circuit Court of Appeals rules 5-4 in favor of U-M (Bollinger)
People on either side of this emotional issue will construe things to suit themselves, but a review of the record does not support the claim. Thus, it is needlessly damaging to public confidence in the integrity of a very important court. The real shame will be if it distracts the U.S. Supreme Court from addressing the merits of a very important issue. The extraordinary accusations were included by Judge Danny Boggs in a "procedural appendix" to his dissent in the court's 5-4 decision.
Boggs is among three appointees of Republican presidents on the court, which handles cases from Michigan, Ohio and Kentucky. All three were in the minority on the U-M case. Boggs said that the court majority, all Democratic appointees led by Chief Judge Boyce Martin, manipulated the handling of the case to exclude two retiring Republican judges from hearing it. Both judges had announced early in 2001 that they would go on "senior status" in the summer of that year, reducing the court to nine judges.
It was on May 14, 2001, that the plaintiff in the U-M case asked the court to decide it en banc, that is, with all of its sitting judges, instead of just the three-judge panel that had been handling it. But because the court was laboring out from under a backlog of en banc petitions, none of the judges, including Martin, was made aware of the request until it was forwarded Aug. 23 by Clerk of the Court Leonard Green.
By that date, the two GOP judges were retired and thus precluded from the en banc panel. Boggs charges that Martin, in effect, sat on the en banc request until he was assured a favorable majority. Martin isn't commenting beyond his opinion, but Judge Karen Nelson Moore, who was in the majority, issued an indignant point-by-point rebuttal to Boggs.
"Even if the hearing panel had taken immediate action to circulate the en banc petition to the whole court . . . the case would have been heard by the same en banc court that, in fact, heard it on Dec. 6, 2001," she said. "The record simply does not support any other conclusion." Another judge in the majority, Eric Clay, wrote that Boggs' allegations "simply defy belief."
Boggs also complained that Martin had inappropriately assigned himself to the original three-judge panel. But Clay wrote that Martin's action was hardly unusual for a court handling 4,000 cases a year with half its seats vacant. Clay noted that in Martin's six years as chief judge, Boggs had never before complained about Martin taking on cases and did not raise the issue in the U-M case until it was plain he was on the losing side.
Given the court's workload, "it is ludicrous to think that . . . the Chief Judge or any members of this Court would single out any one particular case and maneuver the system for a particular outcome," Clay wrote. "None of the decisions made by the Chief Judge . . . differ in any significant way from the decisions the Chief Judge and the Court's staff routinely and frequently make."
This is not the first time Boggs has made allegations that seek to damage his colleagues and reflect badly on the court. Last September, he accused retired Judge Nathaniel Jones of lying to secure temporarily a stay of execution for a convicted murderer from Ohio.
That same month he accused Judge Moore of concealing information in a civil rights case. Neither of the charges were substantiated. But they had the intended result of casting doubt on the integrity of the judicial process. This latest episode reveals how dysfunctional the 6th Circuit has become.
It appears to be in dire need of judges from the legal mainstream to reconcile its feuding factions and shoulder some of the legal workload. Most important, those judges should also respect the institution and steer clear of attacking process when they can't prevail on substance.
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