Senator Orrin Hatch has decided to hold a hearing on the "Michigan Four," which is not some new Motown quartet.  They are four highly qualified nominees to the U.S. Court of Appeals for the Sixth Circuit whose nominations have been stonewalled for well over a year.  Hatch's decision couldn't have come a moment too soon for the beleaguered Sixth Circuit.

The four nominees represent a quarter of the judges authorized on the Sixth Circuit, which hears appeals from Ohio, Michigan, Tennessee, and Kentucky.  Senator Carl Levin's crusade to thwart the nominations of a substantial portion of a circuit's bench -- a move which appears to be motivated by nothing more than sour grapes over the Senate's failure to confirm his cousin's wife to the bench -- has had far reaching consequences for the effective administration of justice.  Because of Levin's obstruction, justice moves slowly in the Sixth Circuit, which processes cases about 40 percent slower than its sister circuits.  For litigants -- including a Sixth Circuit plaintiff who died while a claim of workplace discrimination was pending -- justice delayed is justice denied.

Unfortunately, long delays are not the only consequence of the obstruction.  The Sixth Circuit also has endured judicial scandals that are fueled by these vacancies.  In congressional testimony last fall, I discussed the erosion of public trust arising from one such scandal.   In some ways, the situation is worse today.  In January of this year, Judicial Watch filed a judicial misconduct complaint against Chief Judge Boyce Martin of the Sixth Circuit regarding the same matter.  The complaint claimed that Judge Martin manipulated and disregarded the court's rules in assigning judges in Grutter v. Bollinger, the University of Michigan Law School affirmative action case, and in his handling of In re Byrd, a death penalty case.

The allegations are serious even if they only affected the parties to those cases, but the greater peril is to the public's confidence in the fair and impartial administration of justice.  Based on information obtained from court opinions in those cases, the complaint alleged that the Chief Judge placed himself on the panel to hear the controversial affirmative action case in violation of the circuit's random assignment rule.  In addition, Judge Martin apparently withheld from his fellow judges a petition to have the case heard by the whole court for five months-or, more importantly, until two judges appointed by Republican presidents had stepped down from active status and were thus no longer able to participate in the case.  In sum, the Chief Judge is accused of taking advantage of the vacancies to assure that liberal judges had a clear majority when the case was heard.
 
While the Chief Judge's actions in the affirmative action case have garnered more press, the allegations regarding his handling of the Byrd case are equally disturbing.  Judge Martin failed even to notify some judges that he was polling the court regarding a 30-day stay of execution, preventing them from voicing their opinions to the other judges who were "privileged" enough to vote.  Instead, he is alleged to have contacted only "selected" (liberal) members of the court in what seems more like a backroom deal than court administration.

In addition to not informing some judges about a pro-defendant motion he was advocating, Judge Martin also is accused of withholding from the other judges the fact that the State of Ohio had requested the full court to stay a hearing in the case.  Rather than send the request to his fellow judges, a dissenting opinion in the case suggested that Judge Martin instructed the clerk of the court to withhold the request from the other judges until after the hearing had already begun.  By the time the document was released to the other judges, it was too late to stop the hearing.  By stalling, the Chief Judge essentially decided the motion on his own, without consulting any other member of the court. 

In accordance with the law that governs allegations of judicial misconduct, the complaint against Martin was referred to the next most senior judge on the Sixth Circuit, Judge Danny Boggs.  Judge Boggs recused himself from the initial consideration of the complaint without stating his reasons for doing so, but his recusal was not mandated by law.  Judge Boggs had written dissents in the Grutter and Byrd cases alleging facts that supported the complaint, but that is no bar to his ruling on the complaint, which involves the application of special statutory standards.  Judges should not rule on matters in which they or members of their family have a financial interest (or present other clear conflicts of interest), but the law has never required judges or juries to be completely ignorant of the alleged misconduct they are asked to evaluate-only that they be able to fairly evaluate the evidence presented in the proceeding and apply the relevant law in an even-handed way.  (Indeed, when juries first emerged in English law potential jurors were required to have personal knowledge of the persons and facts alleged.)

Nevertheless, Judge Boggs's decision to recuse himself from the initial consideration of the complaint resulted in the matter being assigned to the next most senior judge on the court, Judge Alice Batchelder.  The statute governing these complaints commands judges to act expeditiously and to render one of only three possible decisions:  dismiss the complaint as frivolous, conclude it because of intervening action by the court, or refer the complaint to a special committee for further investigation. 

Judge Batchelder appropriately ruled that she could not dismiss the complaint as frivolous.  There should be no doubt about that when several judges on the court -- including those who tried to excuse Judge Martin's actions -- had agreed in writing that Judge Martin had broken the rules.  See, e.g., Judge Moore's (somewhat silly) attempt to defend Judge Martin's actions in the Grutter case: "Although that rule states that the third Sixth Circuit judge should be drawn at random, Chief Judge Martin has frequently substituted himself in a variety of matters, of varying degrees of importance, throughout his tenure as chief judge, in order to avoid inconveniencing other circuit judges." (emphasis supplied).  In essence, those who defended Judge Martin argued that he had broken the rules so many times before that he couldn't have meant any harm by doing so in the Grutter case.

 Notwithstanding the apparent violations, Judge Batchelder decided to "conclude" the complaint on the ground that the court had taken steps to prevent abuse in the future.  Given the severity of misconduct alleged and the apparent refusal of Judge Martin to admit his mistakes, concluding this complaint might have been a mistake.  Judge Martin's recent conduct in proclaiming his innocence in the press and launching attacks against other judges on the court raises serious questions about whether the reforms are sufficient to prevent future misconduct.

Admittedly, Judge Batchelder's hands were somewhat tied.  Under the terms of the statute governing complaints of judicial misconduct, she could not conduct a hearing, make findings of fact, or in any way discipline the wayward judge.  Without deciding whether Martin had committed all the acts as alleged, she simply concluded that the undisputed facts at least raised an inference of misconduct.  Rather than refer to the matter for further investigation, however, Judge Batchelder cited the short time remaining in Martin's tenure as chief judge and the court's purported steps to prevent these sorts of shenanigans from happening in the future.  Case closed.

Not so fast says Judicial Watch.  Judicial Watch is appealing Batchelder's decision to the full Judicial Council of the Sixth Circuit, arguing that the misconduct should be investigated fully.  Judge Martin should hope that Judge Batchelder's ruling would be upheld, but apparently no good deed goes unpunished by Judge Martin.  He filed an appeal of his own, apparently arguing that the complaint should have been dismissed as frivolous.  Public confidence in the judiciary is further shaken when Judge Martin attempts to excuse his blatant manipulation of the rules.

Although the content of Judge Martin's filing is not public, it appears from press accounts that Martin has taken a page out of the Clinton playbook in crafting his appeal:  when accused, blame everyone else.  His key argument appears to be that the principle person at fault in this matter is, surprise, surprise, Judge Batchelder.  First, he complained to the press that he had no opportunity to respond to the complaint.  But this is patently false.  The published Sixth Circuit rules governing complaints state that a judge subject to a complaint shall receive a copy of the complaint and may provide a response.  Judge Martin has never denied that he received a copy of the complaint.  Is he unable to read the Sixth Circuit rules that allow him to file a response?  That at least fits his defense that he is unable to comprehend and follow circuit rules.  Without more, we are simply left to conclude that Martin is stretching the truth again in his argument that his opportunity to respond was denied.

Next, Judge Martin's attorney is quoted by the AP as saying that Batchelder was obligated by statute to recuse herself because she took part in the cases at issue.  This is not only ridiculous, it is an insult to Judge Batchelder.  The judicial misconduct statute (in contrast to the recusal statute relied upon by Martin that does not apply to judicial misconduct proceedings) requires that the circuit decide complaints against its own judges, even in cases such as these where the entire court was involved.  In en banc cases, every judge is equally subject to Martin's grand theory of recusal -- except perhaps a newly appointed judge to the circuit.

The statute plainly contemplates that a judge in an en banc case can rule on a misconduct complaint regarding another judge, and it would have been inappropriate for Judge Batchelder to recuse herself in favor of a newly appointed judge.  Perhaps the most important reason is that the statute requires judges to act expeditiously on such complaints; it had already taken some time for the complaint to land in her chambers; and it would have required almost every other judge acting in turn to recuse him-and-herself until the complaint was passed to the most junior members of the court.  In this instance, the responsibility would have fallen to judges who had recently been confirmed and had little or no experience with the circuit rules that were allegedly manipulated.  Moreover, since Judge Batchelder was not required to recuse herself, she would have had no reason to assume that every other judge on the circuit that participated in the Grutter and Byrd cases would do the same.  (See below for a reason to expect they would not do so.)  Thus, there is really no way for Judge Batchelder to have recused herself in favor of a new judge.  It was her duty to decide the case if she could, and she did.

Another possible argument that is implied by Judge Martin's lawyer is that Judge Batchelder is somehow biased because she joined Bogg's comments on the procedural irregularities in the Grutter and Byrd cases.  But every judge on the court at the time the cases were decided took a position on those irregularities, whether they expressly joined Bogg's opinions, tried to justify Martin's behavior, or simply declined to join one or more of the opinions written on the matter.  Indeed, three of the active circuit judges (Daugherty, Cole and Clay) joined in a press release stating that they believed criticisms of Judge Martin to be "totally unjustified and unwarranted."  The restraint Judge Batchelder has shown confining her views to judicial opinions is obviously not shared by many other members of the court.

Judge Martin's finger pointing is a red herring for another more important reason:  the Judicial Council may not dismiss the action unless the allegations are frivolous on their face.  Because the claims are not frivolous (the facts speak for themselves -- res ipsa loquitur as the legal maxim goes), no judge could have so ruled.

Nevertheless, the Judicial Council should take this opportunity to fully investigate the allegations in order to prevent further damage to the court's reputation:  namely, the appearance that the Council is covering up for the misdeeds of one of its own.  In addition, Congress should complete its own investigation and release a public report on the Sixth Circuit misconduct.  Members of the House Judiciary Committee seemed interested in this matter last fall.  There is even more reason for them to get involved again if the chief judge of the Sixth Circuit refuses to admit that his prior manipulation of circuit votes and assignments were improper.

The Senate Judiciary Committee must also push forward with greater vigor on the Michigan Four.  The high level of vacancies certainly contributed -- in terms of opportunity -- to these scandals.  Few steps would go further in preventing future mischief than providing a fully staffed Sixth Circuit.