Dispute erupts over how appeals are heard

Rare flap centers on judges chosen to hear a landmark affirmative action case.

Americans are taught that Lady Justice is blind, but savvy lawyers know that guiding her to the right court can help win a case. Law school students even learn a term for it: "forum shopping."

But an unusual dispute over a high-profile ruling is bringing into view another side of forum shopping: Sometimes it may be judges, not crafty attorneys, who intervene behind the scenes to influence judicial outcomes.

The case in question, involvingthe University of Michigan's admissions policies, could determine the future of affirmative action, with the Supreme Court poised to rule this week or next.

On its way to the high court, however, controversy erupted over whether a 5-to-4 appeal ruling in the university's favor had been tainted by a judge bent on keeping conservative judges off the panel. A judge reviewing an internal complaint this month issued a public rebuke to Boyce Martin Jr., chief judge of the Sixth Circuit Court of Appeals. Judge Martin, in a phone interview, denied the findings of wrongdoing as "totally unfounded"

'Toasty' atmosphere

The public censure was remarkable because judges air such discord only rarely and because few are accused of so blatantly meddling.

Indeed, Martin says the atmosphere was "rather toasty" at a recent meeting of the circuit's judges, based in Cincinnati.

Yet legal experts say how courts rule often depend heavily on which judges hear a case. "It's shockingly true," says Prof. Arthur Miller of Harvard Law School. "Half of litigation is going to the right court."

In most instances, lawyers do the maneuvering before a case starts. Attorneys in civil suits carefully consider where they might find the most sympathetic juries for their arguments.

Actually picking the district court judge who hears your case during trial is far harder, since they are supposed to be randomly assigned by computer according to workload, says Mr. Miller.

Any strategizing is even more difficult in the circuit courts, the middle step between the trial level and the Supreme Court. Cases that come to one of the 12 geographical circuits are randomly assigned to a three-judge panel.

Importance of appeal panels

The composition of those panels is vital to all sides. The circuit courts are usually the final arbiter. Only a fraction of cases are ever heard by the entire circuit (15 or more judges) or go to the Supreme Court.

The composition of circuit panels can influence the outcome of cases, even when there is no intention of tampering with justice. New empirical research shows party affiliation of the president who appointed a judge can often predict how that judge will vote in areas of law such as affirmative action, sex discrimination, and campaign finance, says Cass Sunstein, a law professor at the University of Chicago. Circuit court judges serving on panels with another judge of the same appointing party are even more likely to rule along party lines.

According to Mr. Sunstein's research, for example, a woman alleging sex discrimination is likely to win 75 percent of the time before a panel of three Democrat-appointed judges, but only 31 percent of the time if the panel is three Republican appointees.

At times, Miller says lawyers whisper about the resulting assignments, wondering how a judge on the Second Circuit with an interest in intellectual property always seems to wind up on the panel hearing those cases. But it is nearly unheard of for judges themselves to be formally accused or found to be manipulating the process.

During the civil rights era, it was an open secret that chief judges in the Fifth Circuit intervened to make sure any two racist judges didn't dominate a given panel. More recently, the chief judge of the District of Columbia circuit was accused of abusing her discretion in the assignment of cases involving President Clinton's fundraising.

In the Michigan case, accusations of wrongdoing against Judge Martin surfaced in the May 2002 decision that upheld affirmative action in college admissions. Another circuit complained in an unusual "procedural appendix" that the case was not handled by the usual rules. Judge Karen Nelson Moore wrote in a concurring opinion that such public accusations of manipulation "have done a grave harm" to the court.

In the misconduct report released last week, Judge Alice Batchelder found that Martin bypassed the random assignment system by naming himself to the three-judge panel that heard the case and delayed a request to have the full court hear the case for five months, ensuring two conservative judges who were planning to retire wouldn't hear the case that was decided by a close 5 to 4 margin. Judge Martin says he didn't delay the process or maneuver to be on the panel. "Rules provide I should draw a name, which is what I did. It just happened to be me."

Judicial Watch, a conservative group that filed the complaint, says it may appeal the finding that Martin not be punished.

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