Wednesday, September 3, 2003

Court infighting reaches Congress

6th Circuit skirmish part of larger fight over judicial independence

By Carl Weiser
Enquirer Washington Bureau

WASHINGTON - A simmering legal feud at the 6th U.S. Circuit Court of Appeals in Cincinnati has become part of a growing national political fight between the courts and Congress.

The issue: just how independent judges can and should be.

"There's an assault upon the independence of the judiciary by the legislative branch and by political groups," said Nathaniel Jones, who recently retired from the 6th Circuit. "This latest step is a manifestation of that."

Background on the three 6th Circuit judges involved in the dispute:

Chief Judge Boyce F. Martin Jr.
Age: 67
Office: Louisville
Nominated: 1979 by President Carter, a Democrat
Background: Martin served as U.S. attorney for Western Kentucky from 1966 to 1974 before going into private practice in Louisville. He served as a judge on Jefferson Circuit Court in Louisville and then as chief judge of the Kentucky Court of Appeals before being named to the 6th Circuit. He was elevated to chief judge in 1996. His seven-year term ends in September.

Judge Alice M. Batchelder
Age: 59
Office: Medina
Nominated: 1992 by President George H.W. Bush, a Republican
Background: Batchelder started out as a teacher and school board member around Columbus before becoming a lawyer. Married to former state Rep. Bill Batchelder, she was named in 1985 to a federal bankruptcy court by President Reagan. She served as a federal judge in northern Ohio for seven years before being elevated to the 6th Circuit.

Judge Danny J. Boggs
Age: 58
Office: Louisville
Nominated: 1986 by President Reagan, a Republican
Background: A graduate of Harvard and the University of Chicago Law School, Boggs worked in the Nixon administration Justice Department. He worked for Republicans in the Senate before becoming a special assistant to President Reagan. He was later named deputy energy secretary. He will become chief judge in September.

Source: Congressional Quarterly publications

But to conservatives, the problem is that, blessed with lifetime appointment, judges too often abuse their power to finagle results they want. That's what the watchdog group Judicial Watch accuses the 6th Circuit's chief judge, Boyce Martin, of doing.

"It's very simple. We're asking for the judge to be impeached," Judicial Watch chairman Larry Klayman said. "Not to be facetious, but it's good to impeach a judge every now and then, when it's merited. They need to know they're held accountable."

The 6th U.S. Circuit Court of Appeals is one step below the U.S. Supreme Court. It hears 4,500 to 5,000 cases a year from Kentucky, Michigan, Ohio and Tennessee.

Because the Supreme Court hears only a handful of cases, the 6th Circuit is the final word on 99 percent of cases it hears.

The problems at the 6th Circuit stem from the way Martin scheduled one of the most controversial cases in recent years: the University of Michigan affirmative action case, in which white students said they suffered discrimination because of university admission policies that helped minorities.

Before voting on the case, according to a charge by Judicial Watch in January, Martin waited until two conservative Republicans went into semi-retirement, changing the court's balance.

The 6th U.S. Circuit Court of Appeals then voted 5-4 in backing the University of Michigan Law School's right to take race into account to achieve a diverse student body. The Supreme Court affirmed that decision.

A fellow judge who handled the complaint, Alice Batchelder, said Judicial Watch's facts were essentially correct, but she recommended no punishment, and said the court was handling it by changing its internal rules. She declined comment.

A higher body, the Judicial Council of the 6th Circuit, dismissed the case without determining whether it was true, saying the court had made needed changes.

Questions, complaints

Judicial Watch's complaint was based on a dissent from Judge Danny Boggs, a Republican appointee. Boggs questioned whether the scheduling complied with court rules and whether the result would have been different if the court had done things normally.

The House Judiciary Committee launched an inquiry into the 6th Circuit in June. The chairman of the committee, Wisconsin Republican James Sensenbrenner, cited the possibility of impropriety by the chief judge. The inquiry could end with nothing more than a few letters and interviews, or it could yield a hearing or impeachment, although everyone agrees the latter option is very unlikely.

Academics and court officials say a House inquiry into one judge's actions is unusual. The most recent federal judge to be impeached was Alcee Hastings in 1989, for bribery. Three years later he ran for the House, which had voted nearly unanimously to impeach him, and won. He still represents his south Florida district in the House.

The House inquiry comes amid a barrage of efforts to check judicial power:

•  In July, House Majority Leader Tom DeLay and Cincinnati Rep. Steve Chabot, who chairs the House's Constitution subcommittee, announced they were forming a Working Group on Judicial Accountability. Chabot said the goal is to "raise awareness of judicial abuse, the act of a judge substituting his or her own political views for the law."

•  U.S. Attorney General John Ashcroft sent a memo to U.S. attorneys across the nation asking them to notify the Justice Department when federal judges hand out more lenient sentences than prosecutors seek. A new federal law authorizes Congress to compile sentencing records of individual judges, and Congress has sought the records of James Rosenbaum, a Minneapolis federal judge criticized for being too lenient in drug cases.

•  The Bush administration set up a separate system for trying terrorists, even American citizens, using military tribunals instead of courts. Detained as "enemy combatants," two U.S. citizens are being held without access to lawyers or judicial review. The American Bar Association declared this year that such secret proceedings, denial of counsel and indefinite detention "tear at the Bill of Rights."

•  An amendment added to a House spending bill last month blocks federal money from being used to enforce two specific court decisions: One found use of "under God" in the Pledge of Allegiance unconstitutional and another ordered the chief justice of the Alabama Supreme Court to remove a depiction of the Ten Commandments from a courthouse.

Weakest branch?

The author of that amendment, Indiana Republican John Hostettler, said the courts' role is clear. Compared to the administration or Congress, courts are supposed to be weakest of the three branches of government.

But that's far from accepted among many lawyers and judges. Advocates say courts should be equals of the executive branch and Congress. If judges' power and leeway are restricted, they no longer can check the power of the other two branches.

"Then we have a three-legged stool with a short leg. It's hard to sit on," said Martin Pinales, the Cincinnati lawyer representing Martin in the dispute. "An independent judiciary is what the framers of the Constitution had in mind. It is important to democracy."

Conservatives, especially in Congress, are trying to intimidate liberal and moderate judges like Martin, Pinales said. The problem from their point of view "is not judicial abuse. It's judicial moderates."

Federal judges are given lifetime tenure precisely so they can make the unpopular decisions that run contrary to what the president, Congress or even the public want, said Andrea Seielstad, a University of Dayton law professor.

Without the courts, minorities or unpopular groups seeking their rights - gays, racial minorities, women, the poor, corporations - would have no recourse. Without the courts available as a powerful outlet for grievances, a "domestic explosion" would occur, said Jones, the retired judge.

Checks, balances

Chabot said Congress is simply exercising oversight over the courts.

"The committee's job is to make sure courts function properly," Chabot said.

While the committee's investigation into Martin began before Chabot and DeLay formed their working group, Chabot said that was exactly the kind of issue the group would look at.

"In this instance, there's an alleged abuse of the rules and procedures of the court," he said. "The problem is when you have that happen, if there's a failure to adhere to the rules and the practices the court has established, you can undermine the administration of justice and the public's confidence in our courts."

It's the same undermining of public confidence that occurs when courts seem to get too political, ordering taxpayers to pay more for schools, as in Ohio, or forcing taxpayers to pay for an inmate's sex-change operation, as in New York, Chabot said.

The federal courts are essentially self-regulating, said Robert J. Gehring, president of the Cincinnati Bar Association. Even to lawyers who practice before the 6th Circuit, its internal processes are arcane and sometimes mysterious.

Judicial Watch's Klayman said Martin needs to be removed or at least scrutinized precisely because judges are so important.

"Judges are our most public servants," he said. "They protect us from the tyranny of ourselves and the other two branches of government."

But, he said: "Judges protect themselves. That's the reason for Judicial Watch. They do not police themselves."


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