Client to lawyer: "What chance do I have at winning this case if we appeal?"
Lawyer to client: "I can’t answer that until I know which judges get assigned to our panel."

Conversations similar to this are unfortunately becoming commonplace, the result of an ever-widening divide among jurists about the proper role of the courts and even the idea of the Rule of Law itself. Some jurists view the bench as one of three sources of governmental power, and the preferred source at that, because it is independent, unencumbered by the passions of the people that have such a controlling influence on the elected political branches. Under this view, the judiciary’s most important role is to advance "fairness" and "justice" in areas where the elected branches have stubbornly resisted, and find their authority in notions of a living, breathing Constitution.

Other jurists challenge the very legitimacy of the enterprise undertaken by their black-robed brethren. For them, the principle legitimacy for law is majority rule, so striking down acts of the majority simply because they are counter to a judge’s own predilections of fairness is viewed as raw usurpation. For this class of jurists, the power to strike down laws enacted by the majority is one that should be used rarely, and only when necessary to ensure compliance with the higher law embodied in the Constitution itself, as originally understood and adopted by a supermajority of the people.

This juridicial divide threatens to undermine the very legitimacy of the courts. To date, a legitimacy of sorts has been sustained because panels of judges are randomly drawn, thus minimizing opportunities to game the court system for preferred outcomes. But earlier this month, Sixth Circuit Judge Danny Boggs gave us a rare look at the internal workings of his Court, and we learn from his "Procedural Appendix" that the random assignment rules were themselves flouted in one of the most important cases heard by that Court this past year, Grutter v. Bollinger, addressing the constitutionality of the race-based admissions preferences employed by the University of Michigan Law School.

According to Judge Boggs, Chief Judge Boyce Martin appointed himself to fill a vacancy on the appellate panel whose authority to hear the merits was itself dubious, and once appointed, did not circulate to the full court a petition for initial consideration by the full en banc court until after the composition of the full court had changed dramatically by the taking of senior status by two of the Court’s judges. The petition was finally circulated just 8 days prior to the date set for oral argument before the panel, and then scheduled for oral argument before the reduced en banc court on an expedited basis. Simultaneously, the Judiciary Committee of the United States Senate was engaged in an unprecedented refusal to hold hearings on any of President Bush’s nominees to the entire Sixth Circuit Court of Appeals.

So was all this coincidence, or a deliberate attempt to engineer a particular outcome in the case? We may never know for certain, but the appearance of impropriety is sufficiently strong to warrant further inquiry.

I suggested that the assertion of jurisdiction over the merits appeal was dubious. Three years ago, a motions panel consisting of Circuit Judges Daughtrey and Moore and Senior District Judge Stafford decided an appeal of a procedural intervention motion while the case was pending in the district court. Under Sixth Circuit rules (as under the rules of most Circuit courts), a motions panel can retain jurisdiction of the merits appeal if the issues presented in the initial appeal are sufficiently related to the merits of the case to warrant further consideration by the initial panel. The earlier appeal on the denial of intervention was not so intertwined with the merits of the case as to warrant the panel keeping the case when it came back to the court on the merits. It is particularly important that this "must panel" power, as it is called, be narrowly construed lest it afford attorneys an opportunity for selecting their own appellate panel. In the Ninth Circuit, for example, motions panels sit for an entire month, so after the first ruling of the month is issued, every lawyer in the circuit knows who is on the motions panel. Indeed, the Ninth Circuit advertises that fact on its web site. Timing of interlocutory appeals when a "favorable" motions panel shows up would allow for appellate judge shopping.

Second, even assuming the motions panel had proper jurisdiction over the merits, Sixth Circuit rules required that the vacancy on the panel be filled by a random assignment, not by the Chief Judge appointing himself to sit on the panel to decide this exceptionally important and controversial case. Criticizing Judge Bogg’s "Procedural Appendix," Circuit Judge Karen Nelson Moore pointed out that the Chief Judge had appointed himself in several other cases as well. Although none were as high-profile as this case, prior violations of the random assignment rule surely cannot make the self-appointment legitimate.

Third, by delaying the circulation of the petition for initial en banc consideration for five months, Chief Judge Martin’s actions resulted in a different en banc court, perhaps dispositively so. The petition was filed on May 14, 2001. Judge Norris took senior status on July 1, 2001. Judge Suhrheinrich took senior status on August 15, 2001. The petition was circulated to the panel on August 23, but not circulated to the entire court until October 15, just eight days before argument was scheduled before the panel. The en banc court voted to grant the petition, cancel the panel hearing and schedule an expedited en banc hearing in December. Had the petition been voted upon when it was first presented, Judges Norris and Suhrheinrich would have had the option of serving on the en banc court.

Of course, this "window" of opportunity was likely to close soon, too. Judges Norris and Suhrheinrich were appointed by President Reagan and the first President Bush, respectively, with judicial philosophies more on the strict construction side of the judicial divide. Their replacements have been nominated by a President who pledged during his presidential campaign to appoint judges who would strictly interpret the law—people like Jeffrey Sutton from Ohio, who was nominated on May 9, 2001 but has yet to receive a hearing before the Senate Judiciary Committee.

Again, this may all be just coincidence, but the appearance of impropriety counsels strongly in favor of the Supreme Court granting certiorari in this case to consider the merits free of any hint of judge shopping by the judges themselves.

Dr. Eastman is a professor of constitutional law at Chapman University School of Law, the Director of the Claremont Institute Center for Constitutional Jurisprudence, and an adjunct fellow at the Ashbrook Center for Public Affairs at Ashland University.

"First Principles" is a monthly column that appears in the Los Angeles Daily Journal that addresses current legal issues in light of the principles of the American founding. Copyright 2001 Daily Journal Corp. Reprinted and/or posted with permission. This file cannot be downloaded from this page. The Daily Journal’s definition of reprint and posting permission does not include the downloading or any other type of transmission of any posted articles.