Affirmative Misconduct

According to an Associated Press article in today’s Washinton Post:

The federal judge whose majority opinion sent an important affirmative action case to the Supreme Court improperly intervened in the appeal, a colleague said in an internal review that did not recommend any punishment.

Chief Judge Boyce F. Martin Jr. of the 6th U.S. Circuit Court of Appeals in Cincinnati provided the crucial vote in a 5-4 ruling in May 2002 that upheld affirmative action in college admissions policies.

The review found that Martin named himself to a three-judge panel that was to hear the case even though court rules specify that assignments are made at random. Martin, named by President Carter in 1979, also delayed for five months a request to have the full appeals court hear the case, ensuring the exclusion of two conservative judges who were planning to retire, according to the review.

After those judges went on senior status, which meant they could not participate in the full court appeal, the 6th Circuit took over from the special panel and ultimately made its 5-4 ruling.

….

Judicial Watch, a public interest group, last year filed a misconduct complaint against Martin. Complaint resolutions are overseen by the Judicial Conference, a panel of 27 judges that sets policy for federal courts.

“The Supreme Court now has before it a landmark case which made its way to its steps through judicial misconduct. The Michigan affirmative action case was fixed,” said Tom Fitton, president of Judicial Watch.

Hmm.

UPDATE – Judge Martin denies he did anything wrong, blames his clerk for the five month delay in the request for the whole court to consider the case that preceded the retirement of two conservative judges, blames his accuser on the court, Judge Alice Batchelder, for not giving him a chance to respond before publicizing her charges, and is considering of filing an ethics complaint of his own. (Link via Howard Bashman)

Who ever said the debate over racial preference causes divisiveness?

ANOTHER UPDATE – Howard Bashman reprints an email from a former one of Judge Martin’s former law clerks who parses the 6th Circuit rules and concludes that Judge Martin did nothing wrong. This opinion, I would think, carries a good deal of weight because its author has represented the Center for Equal Opportunity, the American Civil Rights Institute, and the Independent Womens Forum (all of whom oppose preferences) as amici before the 6th Circuit and the Supreme Court in Grutter.