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PostWatch: An irregular correction to the Washington Post

Brought to you by Christopher Rake


Sunday, May 26, 2002
11:59 PM

BACK TO MICHIGAN: A court this week voted 5-4 to uphold affirmative action policy at the University of Michigan law school, as I posted below. Some papers made veiled references to a "procedural dispute" that made it a particularly bitter fight, but none of the accounts read explained it. The Weekly Standard has, and if true it amounts to court-packing. Unfortunately, it's only widely available Dead Tree Weekly Standard, as NRO might say; you must be a subscriber to the magazine to read it somewhere around here. Attorney and commentator Dov B. Fisher writes in the May 27 issue that the rules of the 6th Circuit of the Court of Appeals dictate that cases are usually heard by a three-judge panel, randomly assigned out of a larger pool of judges. But Chief Judge Boyce Martin, appointed by Jimmy Carter, assigned himself to the panel. Then it really gets interesting:

A party who loses before the randomly selected panel may seek "en banc" review, by all the judges on the court. The Grutter [the case] parties, [dissenting judge Danny] Boggs explained, submitted a request for en banc review on May 14, 2001. At the time, 11 judges were active in the circuit. Mysteriously, the request was not circulated to all the judges. Three months later, after 2 conservative judges had taken 'senior status' and retired from active duty, the balance of the court shifted. Only then was the petition for en banc review circulated to everyone.

Thus, the court that decided Grutter on a 5-4 split last week was distinctly different from the one that would have heard it if the en banc request had not been initially concealed.

My search of the Post archive turned up three items, some of which I'd referenced at the time. First, the May 14 story as it broke by Michael Fletcher. I'm not even sure that was in the regular paper--it may have been the online file. No mention of the decision-rigging charge, nor would I expect that on deadline--remember those poor TV reporters flipping through the Bush-Gore Supreme Court decision, live? The second story, on May 15 and also by Fletcher, says:

Boggs added an extraordinary addendum to his dissent, implying that the court majority had manipulated procedures to ensure a favorable outcome. That assertion was dismissed and condemned as "a new low in the history of the Sixth Circuit" in an opinion written by Circuit Judge Karen Nelson Moore that concurred with the majority.

The third item is the May 16 Post editorial:

The 6th Circuit was angrily divided over the case, and its decision is marred by an ugly fight among the judges over a procedural question

That's some procedural question, though, ain't it. Don't mention it, the blog is here to serve. (Though let me emphasize the Fletcher stories were well reported).

That editorial, by the way, says immediately afterwards that " the opinion resoundingly affirms the authority of a state institution to blah, blah blah." can a 5-4 decision resoundingly say anything?

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