For those inclined to repose blind trust in the procedural regularity of the behind-the-scenes operations of the federal courts, I’ll highlight the extraordinary “Procedural Appendix” from Sixth Circuit judge Danny Boggs’s 2002 dissent in the Michigan law school racial-preferences case, Grutter v. Bollinger. I’ll pass over here the facts that Judge Boggs cites that invite suspicion that timing of the en banc process was delayed to engineer a liberal majority. I’ll instead focus on a matter that relates to the concerns that I raised yesterday regarding whether the Seventh Circuit motions panels that are aggressively seizing merits cases are randomly composed:
Judge Boggs points out that Chief Judge Boyce Martin (who, as it happens, resigned in disgrace last year in the face of possible criminal prosecution for “questionable travel reimbursement requests) improperly added himself to a motions panel that was handling interlocutory motions in Grutter. The panel on a previous interlocutory appeal in the case had included a visiting district judge. Sixth Circuit rules provided that, if that judge was to be replaced, a “draw” for his replacement “shall be made from the judges of this Court scheduled to sit at that time.” But instead of the draw, Chief Judge Martin put himself on the motions panel.
Here’s the amazing way in which liberal Sixth Circuit judge Karen Nelson Moore purported to defend Martin’s procedural violation:
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. Thus, it was not unusual for him to place himself on the panel in July 2000. To my knowledge, no one has objected before to Chief Judge Martin’s filling of vacancies in other cases, even though his practice of doing so is a matter of common knowledge among the judges of this court. [Emphasis added.]
In other words: It’s common for Chief Judge Martin to violate the rules by substituting himself on matters (only “in order to avoid inconveniencing other circuit judges,” of course—what a considerate guy!), and everyone knows it.
[S]uch a practice [on Martin’s part], to the extent it exists, was unknown to the other members of the court, who had every reason to believe that the panel had been regularly constituted.…
I absolutely deny that this judge has had any “knowledge” of, or that the Chief Judge has announced or admitted to, any such practice of inserting himself onto panels without a random draw. [Emphasis in original.]
(Boggs also calls into question whether Sixth Circuit rules allowed the original panel that decided the previous appeal to have later interlocutory motions redirected to it.)