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Jewish World Review May 16, 2002 / 5 Sivan, 5762

John H. Fund

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Consumer Reports

A Court Intrigue: Procedural funny business in a racial-preference case | It's not every day a federal appeals judge publicly scolds his own court. Judge Danny Boggs, a 16-year veteran of the Sixth U.S. Circuit Court of Appeals, used a blistering dissent to lay out a shocking case of judicial manipulation that this week may have resulted in an artificial 5-4 decision upholding the University of Michigan's race-based admissions policy for its law school.

Judge Boggs questioned the constitutional reasoning of his five colleagues, which is usual enough. But his opinion also included a "procedural appendix" that laid out how the court's chief judge had ignored the court's "long-established rules" in replacing the three-judge panel originally set to hear the case.

The decision overturned a ruling by District Judge Bernard Friedman, who had held that the law school's policy--under which the odds of a minority applicant being accepted were a staggering 234 times that of a nonminority applicant with the same grades and test scores--was unconstitutional. As Judge Boggs wrote in his dissent: "Michigan's plan does not seek diversity for education's sake. It seeks racial numbers for the sake of the comfort that those abstract numbers may bring. It does so at the expense of the real rights of real people to fair consideration."

Cases before federal appeals courts normally go first to a randomly selected three-judge panel; the full, or en banc, court will sometimes hear an appeal of the panel's ruling. Judge Boggs laid out a disturbing series of decisions that bypassed the usual procedure. First, last April, Chief Judge Boyce Martin, a Carter appointee, dispensed with the usual random selection and assigned himself to the three-judge panel that would hear the case. Judge Martin knew--but didn't inform his colleagues--that the university's lawyers had filed a motion to have the case heard by the full court, which then had 11 members. During the ensuing five months, while the other eight judges were in the dark, two Republican-appointed judges retired, leaving the court, which has 16 seats, with only nine members. Meanwhile in the U.S. Senate, Democrats began the legislative equivalent of a sit-down strike by refusing to hold hearings on most of President Bush's circuit-court nominees.

In October 2001--barely a week before oral arguments on the University of Michigan case were scheduled before the three-judge panel--the remaining six judges finally received the motion for an en banc hearing. Almost immediately, as Judge Boggs noted, an order was issued "canceling the panel hearing . . . and instituting an en banc hearing before the now-reduced court"--the one that upheld the admissions program by a single vote yesterday. "Under these circumstances," Judge Boggs writes, "it is impossible to say what the result would have been had this case been handled in accordance with our long-established rules. The case might have been heard before a different panel, or before a different en banc court." If, for example, a 10-member court had split 5-5, Judge Friedman's ruling against Michigan's admissions policies would have been sustained.

This isn't the first time the University of Michigan case has given rise to procedurally dubious judicial conduct. In 1998, a pair of district judges attempted to prevent Judge Friedman from trying the case.

That judicial scandal began when the University of Michigan filed a motion to consolidate two separate challenges--one involving the law school and one involving undergraduate admissions--on the theory that they were companion cases. Observers suspected the university wanted to push Judge Friedman out so Judge Patrick Duggan could hear both cases. Anna Diggs Taylor, then the District Court's chief judge, established a highly unusual two-judge panel to hear the motion. Judge Friedman asserted his authority under long-established procedural rules to keep the case and excoriated Judge Taylor for what he viewed as an effort to transfer both cases to Judge Duggan. Judge Duggan in turn later ruled in favor of the university in the undergrad admissions case.

As Joseph Perkins points out, there seems to be something about the issue affirmative action on college campuses that brings out intellectual dishonesty. Some supporters of colorblind admission policies wouldn't think of ending preferences for the athletes, children of alumni and students from geographically diverse backgrounds. But supporters of "diversity" on college campuses seldom acknowledge how close to quotas their admission policies have become since the 1978 Bakke decision.

The court split in that decision, with Justice Lewis Powell casting the deciding vote. He split the difference between quotas and colorblindness, holding that "preferring members of one group for no reason other than race" was unconstitutional, but endorsing the notion that a "tip" of the scale toward qualified minority applicants was permissible in the interests of achieving a diverse student body.

Justice Powell's thumb on the admissions scale has grown heavier. "The decision may have been a statesmanlike piece of jurisprudence," says journalist Nicholas Lemann, a defender of affirmative action, "but in admissions-office circles it is widely viewed as meaning that it's OK to reverse-discriminate as long as you're not really obvious about it."

But race-conscious admissions are becoming increasingly difficult to hide. "Diversity" has become such a code word for race that we now know the aim of diversity advocates isn't really diversity at all. It's often result-oriented quotas.

The unpopularity of quotas might explain some of the machinations behind the Sixth Circuit's opinion. The defenders of affirmative action will often go to any lengths to keep such programs alive. "Unfortunately, partisanship does seem to affect how at least lower federal judges are deciding the cases," says David Mayer, a law professor at Capital University Law School in Columbus, Ohio.

It's now clear why only eight of President Bush's 30 appeals court nominees have been confirmed and one, Judge Charles Pickering, saw his appointment killed by a party-line committee vote. A majority of the Senate would likely vote to confirm most of these aspiring judges if their nominations reached the floor. 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.

In his 1960s poem "The Incredible Bread Machine," R.W. Grant described an entrepreneur named Tom Smith who ran afoul of jealous competitors and a power-seeking Justice Department. When Smith appears before the judge, he asks plaintively why he has been singled out. The judge looks down on him and intones: "In complex times the Rule of Law has proved itself deficient. We much prefer the Rule of Men, it's vastly more efficient." This week, the Sixth Circuit veered away from its responsibility to uphold the former and flirted with the latter. Let's hope the Supreme Court agrees to take up the Michigan case and pays closer attention to its own precedents than the Sixth Circuit did.

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©2001, John H. Fund