In July, in Coalition to Defend Affirmative Action v. Regents of the University of Michigan, a divided panel of the Sixth Circuit made the remarkable ruling that Michigan’s Proposal 2—a voter-initiated amendment to the state constitution that prohibits state colleges from granting “preferential treatment … on the basis of race, sex, color, ethnicity, or national origin”—violates the Equal Protection Clause of the federal Constitution. The panel specifically ruled that Proposal 2 “unconstitutionally alters Michigan’s political structure by impermissibly burdening racial minorities.”
Today the Sixth Circuit granted rehearing en banc in the case. But that welcome, if unsurprising, news was accompanied by a statement that Judges McKeague and Kethledge recused themselves from taking part in the rehearing decision. Those recusals may dramatically alter the case’s disposition.
The Sixth Circuit is the most ideologically polarized appellate court in the country. With the recusal of Republican appointees McKeague and Kethledge, 13 judges took part in the rehearing order. Of those judges, seven are conservative (or moderately conservative) and six are liberal (or moderately liberal)*, and I’d be willing to bet that the court granted en banc rehearing by a 7-6 vote.
Obama appointee Bernice Donald joined the Sixth Circuit yesterday and will be eligible to take part in the en banc rehearing. So will senior judge (and hard-core lefty) Martha Craig Daughtrey, who was part of the original panel majority: The Sixth Circuit’s Internal Operating Procedures specify, in I.O.P. 35(a), that a “senior judge of the court who sat on the original panel” is part of the en banc court. With McKeague and Kethledge evidently recused as well from the en banc proceeding, that means that the en banc court will break down on ideological lines eight on the Left to seven on the Right. So unless someone on the Left breaks ranks, look for this case to reach the Supreme Court down the road.
* I would refer to Republican appointees and Democratic appointees, but President George W. Bush appointed liberal Helene White, whom President Clinton had first nominated to that court, as part of a deal with Senate Democrats.