10/13/00 9:45 a.m.
The Judiciary at Risk
The circuit courts and the 2000 election.

By Roger Clegg, general counsel of the Center for Equal Opportunity,
& John Sullivan, associate director of the Project for Civil Rights and Public Contracts

here is growing recognition that one of the defining issues of the presidential campaign is whom the next president will nominate for the Supreme Court. It's distinctly possible that Al Gore or George W. Bush will make at least three new appointments. Two of the current justices are over 70, another will be 80 at the January 2001 swearing in, and a fourth has been ill.

But perhaps as important as the presidential power to appoint Supreme Court justices is the power to appoint judges to federal circuit courts of appeals. According to the Court clerk's office, the justices accepted less than 1.4 percent of the cases they were asked to review in their just-completed term, or 113 cases out of 8198 petitions. So the courts of appeals for the thirteen federal circuits — which are scattered about the country at the judicial level directly below the Supreme Court — are nearly always the courts of last resort. There are about 180 of these judgeships, and right now the judges filling them are split almost evenly between Republican and Democratic appointees.

There is no shortage of contentious issues being handled by these judges: abortion, religious liberties, and school choice, to name just a few. But surely controversies about racial and ethnic preferences would be at or near the top of any list. And, as it happens, three recent circuit-court opinions regarding preferences in public education, contracting, and employment illustrate the importance of selecting the judges who will be deciding these cases for the next generation or more.

In March the Eleventh Circuit agreed with 18 white current and former employees of the Fulton County, Ga., sheriff's department that they had been discriminated against in hiring, disciplinary, and promotion decisions. These men and women were awarded compensatory damages for the harm they suffered, and the county sheriff was assessed punitive damages as a result of her actions. This kind of affirmative discrimination is, unfortunately, too common, and frequently courts are asked to step in.

Another important decision was handed down by the Second Circuit. It arose out of a case involving Jessica Haak, a fourth grader in the Rochester, N.Y., public schools, who sought to transfer from a city public school to a suburban school. Rochester, however, has a transfer policy that allows minority students to transfer from city to suburban schools but prohibits white students from doing so. The trial-court judge opened his opinion with admirable directness: "The basic issue before the Court is whether a governmental body — a school district — can deny a child the opportunity to participate in a school-sponsored program on account of her race. The answer must be 'no.'"

But this May the Second Circuit disagreed. Two Clinton-appointed judges voted to send the case back to the district court for a full trial, delaying the demise of this constitutionally suspect program by several years at least, and perhaps even ensuring its existence indefinitely. The circuit court refused to uphold the trial judge even though the program, with a stated purpose of ending "racial isolation," has been around for 35 years — and during that time the percentage of minority students in the Rochester city schools has swollen from 25 percent to 80 percent. The third judge, a Reagan appointee, dissented.

A very different result was reached in June by the Sixth Circuit in Associated General Contractors v. Drabik. For two decades the state of Ohio set aside 5 percent of all state construction projects for bidding exclusively by minority-owned businesses. The unanimous circuit court judges declared this discrimination unconstitutional. Indeed, they did not see this case as even close. Regarding the statistical evidence offered by the government to support the set-aside, the court wrote: "The deficiencies of the data are glaringly clear."

Nine circuit-court judges (three panels of three judges each) ruled on these cases. The two judges refusing to end the Rochester racial preference are both Clinton appointees, likely to remain on the bench for years to come. Of the seven judges voting to end a preference, four are Reagan appointees (as is the Rochester district-court judge), who likely have fewer years remaining on the bench. Indeed, two of these are already on senior status, meaning they are old enough to retire but have agreed to take on cases occasionally.

It is the circuit-court vacancies that may give the next president his best chance to shape the future of government preferences based on race and ethnicity. Consider, for example, the Sixth Circuit, composed of Ohio, Kentucky, Tennessee, and Michigan. On this court, a quarter of the judicial seats are open: four vacancies out of 16 slots.

A third of the seats — five out of fifteen — are open on the Fourth Circuit, which includes the mid-Atlantic states; and there are, to give another example, three open slots on the Ninth Circuit, the country's largest, which covers the Far West. Nationally, about one slot in eight is open, and of course there will be many additional retirements during the next president's term.

If liberals are appointed to fill these circuit-court vacancies, they would not likely be able to uphold all racial preferences: Over the past decade constitutional law has tilted too strongly against that. But, as the two Clinton-appointed judges did in the Rochester case, they can uphold some preferences or at least delay their death.

This is exactly what prompted the Supreme Court to issue its only ruling on contracting preferences during the past five years, Adarand v. Slater. Last year, the Tenth Circuit, in an opinion written by a Clinton appointee, ruled that Adarand Constructors, a small, family-owned Colorado guardrail manufacturer, could not challenge a federal preference program in construction — despite its successful appeal to the Supreme Court in 1995 of another adverse decision by the court of appeals. Once again, the circuit ruled that Adarand could not question the constitutionality of the preference, even though the company had lost out on a contract for which it had submitted the lowest bid.

In January of this year, the Supreme Court unanimously reversed this latest decision by the Tenth Circuit, and pointedly expressed its displeasure with the circuit's foot-dragging: "It is no small matter to deprive a litigant of the rewards of its efforts, particularly in a case that has been litigated up to this Court and back down again." The Court's impatience is understandable; the contract leading to the lawsuit was awarded in 1989, but the Tenth Circuit last month again ruled against the company, making another trip to the Supreme Court likely — a dozen years later.

The next presidential election will determine whether the federal judiciary will honor the words engraved on the front of Supreme Court building in Washington: "Equal justice under law." There is a fundamental split now between those judges and justices who believe that the scope of one's civil rights depends on one's race, ethnicity, and sex, and those who do not.

These preferences can follow one through life. May public schools assign children to ensure racial and ethnic balance in the classroom? After that, may colleges and universities hold blacks and Hispanics to lower standards than whites and Asians? And, after graduation, may employers discriminate in hiring and promotion based on melanin content, where one's ancestors came from, and gender? For those who start their own businesses, may the government continue to deny contracts to the lowest bidder because of race?

It is hard to imagine a set of questions that is more fundamental to the kind of nation we are and will become.