Judges Spar Over Affirmative Action
By Charles Lane
Washington Post Staff Writer
Saturday, June 7, 2003; Page A04
I don't remember a case like this one
As the Supreme Court prepares for a historic ruling on affirmative action in university admissions, a conservative federal appeals judge has formally accused her court's liberal chief judge of improperly manipulating the case on its way to the high court -- and he has fired back with accusations of his own, in an extraordinary public argument among members of the federal judiciary.
In a May 28 memorandum, Judge Alice M. Batchelder of the Cincinnati-based U.S. Court of Appeals for the 6th Circuit concluded that Chief Judge Boyce F. Martin Jr. used his position in 2001 to delay consideration of race-conscious admissions at the University of Michigan law school until two judges opposed to the policy became ineligible to vote on it. On May 14, 2002, the court voted 5-4 to uphold the policy, and the case was appealed to the Supreme Court, where a decision is expected by the end of this month.
Ruling in response to a formal complaint against Martin filed Jan. 30 by the conservative organization Judicial Watch, Batchelder, an appointee of President George H.W. Bush, wrote that "the undisputed facts" of the matter "raise an inference that misconduct has occurred." Judicial Watch posted a copy of her memorandum on its Web site Thursday evening.
In a rare on-the-record interview yesterday, Martin, an appointee of President Jimmy Carter, said he was "angry" at Batchelder for not giving him an opportunity to reply to the charges, which he denied. He accused Batchelder and other conservatives of trying to de-legitimize the 6th Circuit's ruling to increase the chances it will be overturned.
"They've chosen to embarrass me in order to influence the Supreme Court," Martin said. Batchelder declined to comment.
The mutual allegations illustrate the degree to which affirmative action has polarized even some members of what is supposed to be the most dispassionate branch of government.
And the argument dramatizes the crucial role played by federal appeals court judges, at a time when Senate Republicans and Democrats are at war over President Bush's conservative judicial nominees.
No court has been more deeply riven by ideological and personal feuding than the 6th Circuit, whose jurisdiction encompasses Michigan, Ohio, Kentucky and Tennessee.
The court has had loud public fallings-out over death penalty cases. And though it produced a ruling in the Michigan law school case, the 6th Circuit never managed to do the same in a companion case regarding Michigan's undergraduate program. The Supreme Court eventually took that matter away from the 6th Circuit and will rule on it, too, later this month.
Judicial Watch's complaint against Martin, in fact, was largely derived from an unusual dissenting opinion attached to the 6th Circuit's Michigan ruling last year, in which Judge Danny J. Boggs, an appointee of President Ronald Reagan, assailed Martin.
On May 14, 2001, lawyers for Barbara Grutter, a white applicant whose suit challenging her denial of admission to Michigan's law school had been rejected by a federal district judge in Michigan, filed a request for the entire 6th Circuit to hear her appeal, instead of a three-judge panel, as normally occurs.
This would have been advantageous to Grutter, since the court's membership at the time consisted of 11 judges, five of whom were conservative appointees of Republican presidents -- and one of whom was an appointee of President Bill Clinton who eventually voted in her favor.
According to Boggs, Martin appointed himself to the three-judge group overseeing the case, violating a rule that requires random assignment. He then used that position, Boggs wrote, to keep the Grutter request under wraps until two of the conservative judges had taken semiretired senior status and become ineligible to sit on the case. Boggs declined to comment yesterday.
Batchelder declared her support for Boggs's opinion at the time, and her memorandum in response to Judicial Watch's complaint essentially restated that view. She recommended no punishment, noting that unspecified corrective action had been taken and that Martin's term would soon be expiring.
Martin, however, said yesterday that he had violated no rules by sitting on the three-judge group. He said he joined it because the clerk of the court, Leonard Green, pulled Martin's name at random from a jade bowl Martin keeps in his office containing slips of paper marked with the names of all 11 judges.
Grutter's request sat through the summer at the clerk's office because of a court regulation barring its distribution to the judges until after another technical motion had been ruled on, Martin said.
Ultimately, the case was heard in December 2001 by a nine-judge panel, of whom only three were Republican appointees. The fact that the two conservative judges, Alan E. Norris and Richard F. Suhrheinrich, went into senior status in the meantime was a coincidence, Martin said.
The 6th Circuit's decision in Grutter's case was crucial, because it clashed with a 1995 ruling by the Court of Appeals for the 5th Circuit, based in New Orleans, that invalidated affirmative action at the University of Texas. This "circuit split" all but guaranteed that the issue would be settled by a Supreme Court that might have steered clear of it -- possibly for years -- if the 6th Circuit had ruled the other way.
Boggs declined to comment yesterday. But another member of the court, Judge Ronald Lee Gilman, the Clinton appointee who voted with the Republican appointees against the Michigan law school policy, said that "to say Martin manipulated the process is totally unfair."
"We all need to be more tolerant and collegial and not assume the worst of each other's intentions," Gilman said.
Still, Batchelder's report fueled conservative suspicions.
"It vindicates what we were saying all along. The delay in hearing our petition was inexplicable," said Curt Levey, a spokesman for the Center for Individual Rights, a conservative public interest law firm that has spearheaded the challenge to Michigan's policies.
Yesterday's uproar also revealed previously undisclosed details about the never-decided undergraduate case.
The nine judges who heard it at the 6th Circuit took a tentative vote after oral argument, and based on that, Martin, who favored the policy, undertook to write an opinion for the court. But the judge said yesterday that he was unable to secure the necessary five votes by December 2002, when the Supreme Court announced that it would take over the matter.
This likely means that at least one of the five 6th Circuit judges who voted for the law school policy, which aims to enroll a "critical mass" of African Americans, Latinos and Native American students, balked at the undergraduate policy, which awarded extra points to members of those groups on a 150-point scale used to rank applicants.
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