The Right Coast

April 06, 2004
Hold ... the ... Presses .... for a long, long time
By Gail Heriot

When Barbara Grutter decided to sue the University of Michigan, she knew what a formidable opponent was facing. The University had many millions to spend on its defense; her own resources would be dwarfed. But she thought at least she would be given a fair fight. She was wrong. The system was rigged against her. And it isn’t just Grutter who thinks so. Several of the judges involved in the case complained on the record of procedural irregularities at both the trial and appellate levels. It’s a triple scandal that this story never got more examination in the press.

(((I won’t got into the details of the court shenanigans except to say that court rules require that all cases be assigned to a randomly-selected judge. In Grutter’s case, that was Judge Bernard Friedman. Evidently dissatisfied, the University of Michigan made a motion to Chief Judge Anna Diggs Taylor to have the case re-assigned–something the Chief Judge could do only with Judge Friedman’s consent. That started a complicated series of rule-bending (and sometimes rule-breaking) legal maneuvers by Taylor (whose husband sits on Michigan’s Board of Regents and whose former husband was chairman of the Black Congressional Caucus and a vocal supporter of racial preferences) and her designees that culminated in the issuance of an “advisory opinion” designed to strong-arm Friedman into giving up the case. Furious, Judge Friedman refused to do so. The efforts of his fellow judges to cause him to give up “a case properly assigned ... by blind draw” were an “affront to the dignity and independence of the court and an unlawful intrusion upon ... this court’s business,” he wrote. Everyone knew that there was a good chance that this case would reach the Supreme Court, but the press was largely uninterested in the very human drama that was unfolding over at the federal courthouse in Detroit. Remarkably, further deviations from procedures occurred on appeal as Judge Danny Boggs catalogued in his heated dissent, which is worth reading. I know of no other federal case in history in which the judges themselves have complained so bitterly of improper procedure. Still, the story of the corruption received only passing attention.)))

I was sure that all this would change when documents were leaked to the press showing that the corruption associated with the University of Michigan cases extended all the way to the halls of the United States Senate. These documents make it appear that Senate Democrats and their staff members were prepared to pursue a conscious policy intended to influence Grutter’s outcome. “Elaine [Jones of the NAACP Legal Defense Fund] would like the Committee to hold off on any 6th Circuit nominees until the University of Michigan case regarding the constitutionality of affirmative action in education is decided by the en banc 6th circuit,” wrote Senate Judiciary Counsel Olati Johnson to Senator Kennedy. She then stated that her “Recommendation” was to “[l]et Elaine know that we will ask Senator Leahy to schedule [Sixth Circuit nominee Julia] Gibbons after [Ninth Circuit nominee Richard] Clifton.” (Such a course of action became unnecessary when the Sixth Circuit decided the Grutter case a couple of weeks following the memo.)

When I heard about the memo, I expected Republicans to be outraged. I expected them to demand an investigation. Sure, maybe it would turn out that Senator Kennedy disciplined Johnson for such an inappropriate recommendation, but I expected a demand for an investigation anyway. Instead, the outrage seems to have come exclusively from Senate Democrats, who were outraged that their strategy documents had been leaked. And, for the most part, that’s how it’s been reported in the press. It’s as if the Pentagon Papers story had been a story about pilfered information rather than a story about Vietnam. And not much seems to be happening on to focus attention on the very ugly contents of the documents. I don’t have any problem with the press drawing attention to the whatever improprieties that might have occurred as a result of improperly obtained documents. But can’t we have just a little outrage for what may well be one of the most “irregular” cases to make it through the federal courts?