Today the Supreme Court hears oral arguments in McCreary Co. v. ACLU, a case concerning whether the Ten Commandments may be posted in a courthouse as part of a display of dozens of documents illustrating the foundations of American law. The case is important for several reasons: In addition to settling the question about the constitutionality of these displays across the country, the Court has agreed to reconsider the controversial test it uses in deciding whether government action violates the First Amendment’s prohibition against religious establishments. But perhaps most important, the case vividly demonstrates the problem with willful judges, and the need to confirm President Bush’s long-stalled judicial nominees.
Judge Clay of the United States Court of Appeals for the Sixth Circuit wrote the decision reviewed by the Supreme Court in McCreary. In concluding that posting the Ten Commandments as part of a larger display is unconstitutional, Judge Clay subtly yet substantially changed the legal test. Specifically, instead of asking the relevant question under Supreme Court precedent–i.e., whether the display of numerous documents illustrative of the foundations of American law had “a secular purpose”–he asked whether the primary or “predominate purpose” for the display was religious. But the Supreme Court has rejected that standard, noting in the seminal case on religious displays that “[e]ven where the benefits to religion were substantial . . . we saw a secular purpose and no conflict with the Establishment Clause.”
Unfortunately, this decision is characteristic of Judge Clay’s jurisprudence, which displays a notable disregard for binding law. For example, last year he wrote an opinion in Ejelonu v. INS granting immigration relief to a petitioner based on the writ of audita querela. Haven’t heard of this noble writ? There’s a reason. Aside from the fact that the writ was considered out of date at the time of Blackstone, Congress expressly abolished it in 1946. And yet, Judge Clay’s decision was only narrowly vacated by the entire Sixth Circuit’s voting to hear the case en banc–an optional proceeding that can be used by the full circuit when they believe a case was wrongly decided. At other times, Clay’s decisions seem wholly out of touch with reality and law. Take for example the 2003 case of Gean v. Hattaway, in which Judge Clay dissented in part in order to suggest that the Equal Protection clause prohibits states from discriminating based on income in the distribution of welfare benefits. There is nothing wrong with this position–if you think that when states are cutting welfare checks they shouldn’t distinguish between the destitute and Bill Gates.
The problem created by Judge Clay’s dubious jurisprudence is exacerbated by the current status of the Sixth Circuit–a court with jurisdiction for appeals from Ohio, Kentucky, Tennessee, and Michigan and yet which suffers from a 25 percent judicial-vacancy rate. And as luck would have it, the story of these vacancies also prominently involves Judge Clay. In 1992, Democrats in the Senate denied Sixth Circuit nominee John Smietanka a hearing. In light of the delay caused by this, a deal was brokered between President Clinton’s White House and Senator Spence Abraham’s office, under which Senator Abraham would support Clinton’s first nominee to the bench–Eric Clay–and the White House would work with Abraham to find a consensus nominee for a second vacancy. As an initial matter, it is curious that Judge Clay’s nomination ever made it that far: A disciplinary panel at Yale Law School found that he had threatened a professor with physical violence while he was a student there–something that would ordinarily be problematic for those seeking to join the bar, let alone the bench.
Senator Abraham kept his end of the bargain, assuring that Clay was confirmed. The White House, however, opted against a consensus nominee for the second vacancy in favor of controversial candidate Helene White, the wife of Senator Carl Levin’s cousin. With the deal broken, Senator Abraham did not support nominee White, and she did not receive a hearing. But Senator Levin is protective of his in-laws, and he has been stonewalling all four circuit-court nominees from Michigan until White gets a place on the Sixth Circuit.
This obstruction comes at a price. The extraordinary vacancy rate–designated by the National Judicial Conference as a judicial emergency–has had a profound effect on the operation of the Sixth Circuit. The Sixth Circuit is the slowest circuit in the country, averaging a staggering 30.6 months per appeal. Furthermore, the vacancies have left the door open for partisan mischief. In the infamous Grutter case, which concerned the legality of affirmative action at the University of Michigan, then-chief judge Boyce Martintook advantage of the narrow ideological split on the court to rig the panel hearing the case, following which he allegedly rigged the timing of the en banc review to benefit from two Republican-appointed judges’ retirements. All the while, the NAACP successfully lobbied Senator Kennedy to stall nominations to the Sixth Circuit while Grutter was pending in order to make certain the case was heard by a majority liberal court. Finally, the court is currently divided evenly between Republican nominees and Democratic nominees. Full-court votes on issues such as last-minute death-penalty appeals have become macabre sport in the circuit, as liberal judges attempt to keep partially retired senior-status judges from participating in the cases lest they upset the balance of the court. Approving the nominees currently languishing in the name of nepotism would do much to expedite the caseload and improve the administration of the court.
While it is good that the Supreme Court has agreed to review Judge Clay’s flawed opinion in the McCreary case, that is at best a partial fix. The real problem goes deeper, not to individual cases badly decided but to the confirmation of judges. Until we can overcome Carl Levin’s roadblock and thereby provide a check against judicial excess in the en banc court, I fear we will likely see more cases like McCreary in the days ahead.
–Kay R. Daly is president of the Coalition for a Fair Judiciary.