WASHINGTON, May 27 (UPI) -- What the American people most need to understand, future Supreme Court Justice Felix Frankfurter once advised President Franklin D. Roosevelt, is that constitutional law has little to do with the Constitution and much to do with the views of the judges.
This is what the American people need to know even more today, and it is perhaps nowhere clearer than in decisions involving race. This is strikingly illustrated by the decision of the Sixth Circuit Court of Appeals upholding the racially preferential admission policy of the University of Michigan law school.
The suit was by a white woman who was denied admission to the school even though she would have been admitted, the school conceded, if she had been black.
A federal district judge held the law school's racially discriminatory admissions policy unconstitutional. Another judge in another case upheld the policy, however, at the college level. On appeal by the law school, the Sixth Circuit, sitting en banc -- all judges in active service rather than the usual three-judge panel -- by a five-to-four decision reversed the district court and held the policy constitutional.
What five federal judges find the Constitution prohibits, therefore, a different five judges find it permits. These opposite conclusions do not arise from differences in ability to read the Constitution. More relevant is the fact, not usually noted in reports of the decision, that four of the five Sixth Circuit judges who voted to uphold racial preferences were appointed by President Bill Clinton and the fifth was appointed by President Jimmy Carter.
The district judge and three of the four Sixth Circuit dissenting judges were appointed by either President Ronald Reagan or the first President George Bush. The fourth Sixth Circuit dissenter, breaking perfect symmetry, was also a Clinton appointee.
The Sixth Circuit's decision would seem to be incorrect on the merits because it is inconsistent with the Supreme Court's controlling decision in the famous 1978 Bakke case.
In Bakke, the Court held that racial preferences may not be used in university admissions merely to admit more members of preferred groups, but could be used as a "plus" to "tip the balance" in close cases in order to achieve student body "diversity."
As Judge Danny Boggs demonstrated in his dissent, the University of Michigan law school did not use race merely as a plus in close cases, but as the dominant factor in admissions decisions.
Instead of black applicants having to compete with white applicants for every place, as Bakke requires, they were virtually guaranteed admission with scores that for whites would have meant almost certain rejection. The school insisted that it was seeking a "critical mass" of preferred students, not filling a quota, but resolutely refused to quantify "critical mass" in any way.
The Sixth Circuit's decision, whatever its merits, is hardly surprising given the makeup of the court. What is surprising is the way that makeup was brought about.
Judge Boggs attached to his dissenting opinion an extraordinary "Procedural Appendix" asserting -- with Judge Alice Batchelder concurring and Judge Eugene Siler, Jr. stating that he did not question its accuracy -- that the majority manipulated and violated court rules and policies with the effect of excluding two members of the court, Judges Alan Norris, a Reagan appointee, and Richard Surheinrich, a Bush I appointee, from participation in the decision.
Under the Sixth Circuit's rules, preliminary motions regarding a case on appeal are to be heard by a three-judge panel, the members of which are to be selected at random. "[A]s a result of a series of decisions in contravention of our rules and policies," Judge Boggs wrote, "this was not done." In brief, to a panel consisting of Judges Martha Daughtrey and Karen Moore, Clinton appointees, a third judge was to be added. Instead of selecting that judge at random, Chief Justice Boyce Martin, Jr., simply decided to appoint himself. "[A]ll further actions regarding" the cases (two were consolidated), Judge Boggs pointed out "were handled by this preselected panel."
On May 14, 2001, attorneys for the parties petitioned the court that the case be heard en banc. At that time the court consisted of 11 active judges. If the petition had been promptly circulated to the entire court, as it should have been, all 11 would have been eligible to vote on it and then to participate in the en banc hearing and decision of the case.
Chief Judge Martin did not circulate the petition, however, until October 2001, after the time had arrived for Judges Norris and Surheinrich to take senior status, making them ineligible to vote on the petition and participate in the case.
In early October Senior Judge Ralph Guy, a Reagan appointee, after making "several unsuccessful efforts to speak with the Chief Judge, ... faxed to the Chief Judge a letter setting forth his concerns as to whether court rules and policies had been followed in this case. He received no response or any other communication regarding this letter (and has not, to this day)."
Judge Boggs was severely berated by Judges Daughtrey and R. Guy Cole, Jr., in concurring opinions, for making this history known, on the ground that it would "undermine public confidence" in the court.
As Judge Batchelder responded, however, "Public confidence in this court or any other is premised on the certainly that the court follows the rules in every case, regardless of the question that a particular case presents. Unless we expose to public view our failures to follow the court's established procedures, our claim to legitimacy is illegitimate."
(Lino A. Graglia is Dalton Cross Professor of Law at the University of Texas School of Law)
