Ruling on U-M is criticized Ruling on U-M is criticized
Lawmaker challenges court on affirmative action
July 2, 2002
BY MARYANNE GEORGE FREE PRESS
ANN ARBOR BUREAU The chairman of the U.S. House Judiciary Committee has demanded court documents on the University of Michigan Law School admissions case for an investigation of possible judicial misconduct. U.S. House Judiciary Chair James Sensenbrenner Jr. said that the method used to select the nine judges who decided the case "may have improperly influenced the outcome."
Sensenbrenner made the allegation in a June 26 letter to Boyce Martin, chief judge of the U.S. 6th Circuit Court of Appeals in Cincinnati, which wasobtained by the Free Press. The appeals court ruled 5-4 on May 14 that the U-M Law School admissions policy, which considers race as a factor, is legal.
The ruling reversed a March 2001 decision by a federal district judge in Detroit. The court also found that the law school had a compelling state interest in achieving a diverse student body. Sensenbrenner, R-Wis., gave Martin until July 12 to hand over documents related to the case, which many scholars say is headed to the U.S. Supreme Court. U-M awaits a decision from the appeals court in a similar case involving the school's undergraduate admissions policies.
Judge Danny Boggs, one of four dissenting judges in the case, said in his opinion that Martin effectively sat for four months on the request for a review by the nine-judge panel -- known as an en banc hearing -- until two judges appointed by Republican presidents had gone on senior status, which means they don't usually hear cases.
"The participation of those judges on the panel could have reversed the outcome of the case," Sensenbrenner wrote. In his letter to Martin, Sensenbrenner said Martin violated several court rules. Referring to Boggs' dissent, Sensenbrenner claimed Martin substituted himself for another judge who should have been chosen at random in one instance.
Citing his constitutional jurisdiction over the courts, Sensenbrenner wrote he is "compelled to review credible evidence of judicial misconduct. Published judicial decisions, such as Boggs's dissent, describing a failure to comply with the rules of the court, raise serious questions for this committee to consider."
Martin and Sensenbrenner could not be reached for comment Monday. But Judge Karen Nelson Moore, who voted with the majority, issued a rebuttal to Boggs in the May 14 opinion. "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," Moore wrote.
Although the en banc request was filed May 14, Martin and other judges didn't see it until after the two Republican judges went on senior status, Moore said. They were laboring under a backup of other en banc petitions. U-M spokeswoman Julie Peterson declined to comment on the Sensenbrenner letter.
Kirk Kolbo, a lawyer who is representing Barbara Grutter, who sued the law school in 1997, said he was called a couple of weeks ago by a member of the House Judiciary Committee but never spoke to him. Kolbo said he didn't ask for a congressional investigation. Kolbo said he is focused on filing his request to appeal the case to the Supreme Court, which is due Aug. 12.
Robert Sedler, a Wayne State University Law School professor, blasted the letter as improper intrusion into the judiciary. "What is even more appalling is the implication in the chairman's letter and in Judge Boggs' opinion that this case would be decided on partisan grounds," said Sedler, who is a constitutional expert.
"The chairman's letter is an insult to the impartiality of the court." Jeff Lungren, spokesman for the House Judiciary Committee, said the letter sent to Martin is one of many oversight letters sent to courts by the committee. He said the committee has oversight regarding the administrative functions of courts.
"The separation of powers has checks and balances," he said. "Everyone has an interest in ensuring there is no judicial misconduct. It is not a partisan issue." Lungren said he expected Martin to send the documents requested. It was not clear Monday what would happen if Martin refuses to comply with the request.
Contact MARYANNE GEORGE at 734-665-5600. MORE EDUCATION STORIES FREEP FRONT
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