Democrat- and Republican-nominated judges on the 6th U.S. Circuit Court of Appeals lashed out at each other in a court ruling on Tuesday in an unusual public exposure of the court's internal disagreements.

Martin

        The differences appear in a 5-4 decision in which the Cincinnati-based appellate court upheld the University of Michigan law school's policy of considering race in deciding which students to accept.

        “We find that the law school has a compelling state interest in achieving a diverse student body,” the 6th U.S. Circuit Court of Appeals said in a 5-4 decision, reversing a lower-court ruling.

        The university had argued that diversity enhances the education of all its students. It said it considers race as one of a number of factors, including an applicant's academic record and economic status.

        Around the country, federal appeals courts have reached conflicting decisions in recent years on affirmative action in admissions.

        The Michigan case could let the Supreme Court settle the dispute and revisit the landmark 1978 Bakke case, which banned racial quotas but allowed consideration of race in college admissions.

        “This is a steppingstone to a landmark decision,” said Larry Dubin, a law professor at the University of Detroit Mercy.

        In a dissent, Circuit Judge Danny Boggs called Michigan's policy “a straightforward instance of racial discrimination by a state institution.”

        The Michigan ruling sprang from two lawsuits brought by white students who were rejected by the university. They contended that Michigan's law school and undergraduate admissions policies discriminate against whites in favor of less-qualified minorities.

        A federal judge in Detroit upheld the use of race in undergraduate admissions. But another federal judge, Bernard Friedman, struck it down in law school admissions, declaring: “The focus must be upon the merit of individual applicants, not upon characteristics of racial groups.”

        The appeals court said Tuesday that it would issue a ruling later in the undergraduate case.

        Judge Boggs, a White House aide to President Reagan before Mr. Reagan nominated him to the court in 1986, attached a “procedural appendix” to the ruling in which he claimed that the court did not follow its internal rules in determining which judges initially handled the case.

        He also challenged an assertion of Judge Karen Nelson Moore, nominated by President Clinton in 1995, that all judges knew that Chief Judge Boyce Martin Jr. sometimes put himself on three-judge panels that issue initial rulings on most cases that come before the court.

        Judge Martin, chief judge on the court that handles appeals from Michigan, Ohio, Kentucky and Tennessee, was nominated by President Carter in 1979. Judge Boggs is next in line to become chief judge when Judge Martin's seven-year term in that administrative job ends in 2003.

        “I do not contend that the legal opinions of any member of this court do not represent that judge's principled judgment in this case,” Judge Boggs wrote in a dissenting opinion, challenging Judge Moore's criticism. “However, under these circumstances, it is impossible to say what the result would have been had this case been handled in accordance with our long-established rules.”

        Judge Moore responded that the case had been handled properly and that Tuesday's ruling reflected the judges' opinions. She said Judge Boggs' “procedural appendix” went beyond the usual dissenting opinions.

        “Judge Boggs' opinion marks a new low point in the history of the Sixth Circuit,” Judge Moore wrote in a concurring opinion. “It will irreparably damage the already strained working relationships among the judges of this court and ... serve to undermine public confidence in our ability to perform our important role in American democracy.”

        Larry Sabato, director of the University of Virginia's Center for Politics, said the differences exposed in the ruling give the public valuable insight into how the political background of judges affects court rulings. Those differences can be seen in decisions involving political issues including redistricting and social issues including abortion, gay rights, affirmative action and gun rights, said Mr. Sabato, a political science professor.

        “These people are not automatons,” Mr. Sabato said. “Most of them got to be judges because they were strongly favored by one party. They share the party's values.”

        Judge Martin wrote the court's majority opinion in Tuesday's ruling. His writing did not mention the differences expressed by the other judges.

        Judge Boggs wrote that this is the first time in his 16 years on the court that the court granted a request to handle a case for the first time as a full court. The judges said last year that they viewed the case as important, and said the initial full-court handling would ultimately allow a quicker appeal to the Supreme Court.

        The usual practice is for a three-judge panel to initially rule on a case. A panel's ruling can then be appealed to the full court, or on to the Supreme Court.

        Last year, death penalty supporters and opponents on the court clashed in opinions concerning Ohio's planned execution of John W. Byrd Jr. for the 1983 killing of a suburban Cincinnati store clerk. Mr. Byrd was eventually executed in February.

        Judge Nathaniel Jones, who retired in March from the appeals court to become a lawyer in private practice, wrote in the Byrd case last year: “This case has stirred a disturbing degree of acrimony within the court which reflects the politicization of the issues by some public officials with motives open to serious question.”

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