Sunday, June 22, 2003

Political divide sparks disorder in the courts

6th Circuit Court's spats lift veil, and picture isn't pretty

By Dan Horn
The Cincinnati Enquirer

If not for their black robes and ornate courtrooms, the judges at the 6th U.S. Circuit Court of Appeals could easily be confused these days for those loud, angry talk show guests on TV.

The Cincinnati-based court, among the most powerful in the nation, is as bitterly divided as it has ever been.

One judge says another broke the court's rules. The accused judge says he's being "hung out to dry" by his colleagues. And judges on both sides have described their opponents as a "cabal" of plotters.

The latest dispute is over allegations of judicial misconduct. But the court's troubles are a symptom of a more serious illness, one that conservatives and liberals say infects virtually every federal court in America: politics.

"To be treated this way by colleagues is beyond the pale," said Boyce Martin Jr., the 6th Circuit's chief judge and the target of the recent misconduct accusations. "(The court) is totally more politicized."

Although judges always have been political creatures, politics has never played a more visible and, some say, more destructive role in the country's judicial system than it does today.

Politics is blamed for making judges less civil and more partisan, and for undermining public confidence in a judiciary that is supposed to remain above the political fray.

The influence of politics has come under increasing scrutiny as the federal courts grapple with the same issues - civil rights, the death penalty, affirmative action - that divide the rest of the country.

Just as the nation was split among "red states" and "blue states" in the last presidential election, so are the courts divided among judges with sharply different points of view.

Nowhere are those divisions more clear than at the 6th Circuit, which now is evenly split with six judges appointed by Republican presidents and six appointed by Democrats.

"The 6th Circuit has become the poster boy for partisan division in our country," said Larry Sabato, director of the Center for Politics at the University of Virginia.

"The belief used to be that judges needed to step back from their partisan past and serve in a nonpartisan way," he said. "It's no longer true. The era of the nonpartisan American judiciary is over."

A veil is lifted

The nation's 12 circuit courts, each just one step removed from the U.S. Supreme Court, are flashpoints for political conflict because they often are the last word on disputes over the Constitution.

The 6th Circuit, which serves Ohio, Michigan, Kentucky and Tennessee, has recently tackled several high-profile cases, including John Byrd's death penalty appeal and the University of Michigan's policy of using race as a factor in student admissions.

The battles over those cases were unusual not only for their intensity, but because they went public.

"It's really remarkable, what we're seeing at the 6th Circuit," said Francis Manion, legal counsel with the American Center for Law and Justice, a conservative advocacy group. "It may have existed before, but what's extraordinary here is that the veil has been lifted and we're all seeing it."

The first hint of trouble came in 2001, when Martin and a majority of his colleagues granted a stay of execution for Byrd. Although the vote tally was not released, the divide was clearly along ideological lines.

Judges Danny J. Boggs and Alice M. Batchelder, both Republican appointees, said Martin failed to notify all of the judges before taking the vote and complained that Martin and other Democratic appointees had no legal basis to delay Byrd's execution.

"The truth may be that for this prisoner, a majority of the active members of this court would grant a stay based on a hot dog menu," Boggs wrote in a scathing dissent. Byrd won the stay, but eventually was executed.

In the Michigan case, which ended in a 5-4 decision upholding the school's admissions policy, the judges again split along political lines.

Batchelder, who could not be reached for comment, recently concluded a misconduct investigation that found Martin mishandled the Byrd case and may have delayed a vote on the Michigan case until two conservative judges retired.

The investigation was prompted by a complaint from Judicial Watch, a conservative advocacy group, which posted Batchelder's findings on its Web site this month.

The release of the findings stunned Martin, who said that if Batchelder had spoken to him he could have pointed her to court records that show he did nothing wrong.

He also complained that Batchelder should not have headed the investigation in the first place because she was involved in both of the disputed cases and had made her opposition to him well known.

"I've had my share of controversy," he said, "but not to the extent that my colleagues went public in trashing me."

As if to underscore the divide on the court, five other active and senior judges, all Democratic appointees, signed a letter last week stating that Batchelder's criticisms were "totally unjustified and unwarranted."

New balance of power

Legal experts say spats like the one at the 6th Circuit are appearing more often because several courts are becoming more divided. After eight years of Democratic appointees, President Bush's judges are starting to shift the balance of power.

"When the courts are lopsided one way or the other, it's no big deal," Manion said. "But if the pendulum swings, the rhetoric becomes more strident and heated."

Manion is among those paying close attention to the changing politics of the court. He represents the Adams County school board, which has asked the 6th Circuit to let it post the Ten Commandments at four public high schools.

With President Bush's nominees waiting to fill the four remaining 6th Circuit vacancies, Manion believes judges sympathetic to his cause are on the way. "Time is on my side," he said.

Lawyers like Manion have always paid attention to the background of the judges they must face in court. But a judge's history is even more important today because judges tend to be more political than they were 20 or 30 years ago.

The reason, some legal experts say, is a selection process that emphasizes ideology as much as competence. The presidents who nominate the judges and the senators who confirm them all want a judiciary that reflects their view of the world.

"The differences between Democrats and Republicans (on the courts) have become stronger over time because presidents have become more ideological in their appointees," said Larry Baum, a political science professor at Ohio State University.

He said judges are now appointed with the expectation they will vote a certain way, and they often do.

A recent study in Judicature magazine found that Democratic appointees cast a "liberal" vote more than 60 percent of the time when they overturn lower court decisions on labor or business issues. Republicans, meanwhile, cast a liberal vote about 48 percent of the time.

"These people are appointed through an increasingly and excruciatingly political process," Sabato said. "It would be surprising if they were not political."

More debate, less civility

As ideological differences have grown, so has the intensity of debate among the judges.

Sometimes, as at the 6th Circuit, the differences boil over into a public debate. More often, though, they show up as subtle jabs or biting one-liners in their published opinions.

"The profession generally has noticed angrier dissents in the appellate courts," said Stephen Gillers, a professor of legal ethics at New York University's law school. "There is more dismissive language and there are comments that could be considered personal."

Justice Antonin Scalia, among the Supreme Court's staunchest conservatives, has made colorful language a staple of his opinions. In one case, he described the argument of a colleague as "irrational" and said it "cannot be taken seriously."

In another, he said, "our constitutional jurisprudence has achieved terminal silliness."

At the 9th Circuit, in California, a conservative judge has criticized majority opinions as "high-fallutin' rhetoric," while a liberal judge has said he cannot enforce a controversial law even though the Supreme Court has upheld it.

Nathaniel Jones, who recently retired from the 6th Circuit, believes collegiality is being lost because judges cannot put aside their ideological agendas.

A liberal, Jones often disagreed with the 6th Circuit's conservatives. But he said only in the past few years did those disagreements become personal, most notably with the spat between Martin and Batchelder

"That's just unprecedented," he said of the criticism of Martin. "That's a breach of the rules and a breach of etiquette. It smacks of a political cabal."

He said the spectacle of judges publicly sniping at one another undermines confidence in a judiciary that is supposed to be the one branch of government where the law - not politics - rules the day.

Recent studies have found that public confidence in the judiciary has eroded over the years but still remains relatively high, with some polls showing that roughly 80 percent of respondents still have confidence in their judges.

But even if spats among judges do lower public confidence, some say it's better for the public to see judges as they are than to wrongly believe they put politics aside the moment they put on their black robes.

"It's not necessarily a bad thing," Manion said. "If judges are going to rule like politicians, let's treat them like politicians."

Whether it's good or bad, the political and ideological battles show no sign of abating.

At the 6th Circuit, the divide is still great. Martin continues to fume over the misconduct investigation and, last week, challenged Batchelder's findings in a formal appeal.

"I'm fed up," he said, "with being beaten upon."


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