- The Washington Times - Monday, June 16, 2003

As most readers of Online Forum know, the United States Supreme Court is deliberating on two cases, out of Michigan, testing whether a desire for “diversity” is a sufficient reason for a university to commit racial discrimination in admissions.

One of the cases before the court, from the University of Michigan’s law school, was decided against the defendant, UM, at trial. But on appeal, the overt racial discrimination was upheld by a 2-to-1 panel of the U.S. 6th Circuit Court of Appeals.

Plaintiff Barbara Grutter, a talented student whom the University conceded it would have admitted had she not had the misfortune to be of the wrong race (she is white), asked the entire 6th Circuit to review the panel’s decision [This is called an en banc decision.] By a 5-to-4 margin, she lost again. All those who had cheered the demise of the Ivies’ “Jewish Quota,” and of oft-petitioned-for Asian quotas, decried this invocation of “diversity” as a ground for racism. Whence the appeal to the Supremes.

The 5-to-4 en banc decision, like the Watergate break-in, looked a little fishy when it was rendered, but is looking a lot fishier as it is examined further. Circuit Judge Danny J. Boggs, in an extremely courageous dissent to the en banc decision, was the only one to highlight the procedural anomalies surrounding the appeal. His remarks were seen by some of his judicial colleagues as an embarrassment. No longer — now the acting chief judge of the circuit has confirmed, in a official letter, all of Judge Boggs’s fears.

The en banc decision was tainted by judicial misconduct that almost certainly changed the final result. Had the plaintiffs won at the 6th Circuit, as it now appears they would have and should have, had ethics rules not been violated, the procedural posture of any appeal to the Supreme Court would have changed — indeed, it’s possible the Supremes wouldn’t even have taken the case at all.

Acting Chief Judge Alice Batchelder confirmed, in response to an amicus intervenor in the case, that two fundamental breaches of the 6th Circuit’s own operating procedures were committed by its chief judge, Boyce Martin. [Judge Martin had to recuse himself from responding to the complaint by the intervenor, and Judge Batchelder was the next most senior judge.]

First, Judge Martin assigned himself to the three-judge panel that heard the appeal of the trial court’s ruling. This is absolutely irregular — panel assignments are typically and ought to be made at random, precisely in order to minimize politicization of the judicial process.

Judge Martin then compounded his misconduct, after his panel ruled in favor of UM, by refusing to notify his colleagues that an en banc petition had been filed. Judge Martin evidently did this in the expectation that two conservative circuit court judges were about to “go senior.” Senior judges hear some cases and receive full pay, but they are not allowed to participate in en banc deliberations.

The two judges about to “go senior” manifestly did not know an en banc petition had been filed, else they likely would have delayed their semi-retirement until after hearing the Michigan decision. But they never had a chance to make that choice. What would likely have been a 6-to-5 majority in favor of race-blind admissions became a 5-to-4 triumph of racism, thanks to these two vacancies.

“The case was fixed and the Supreme Court has a case before it that got there through judicial misconduct,” says Thomas Fitton, president of the intervenor, Judicial Watch. “What action is the Supreme Court going to take to protect its own integrity?” Well, the sweetest revenge would be a victory against racism, if the Supremes return the decision that the 6th Circuit would have rendered had the fix not been put in. Meanwhile, Judge Boggs has been vindicated, and judicial activists of a liberal stripe can now be counted on to proclaim that no binding precedent prohibited Chief Judge Martin’s actions, and that all law is politics anyhow.

Michael I. Krauss is a professor at the George Mason University School of Law.

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