Wednesday, September 3, 2003

Judges say appeals court being harmed by bickering

'It gives the ... perception that we are dysfunctional.'

By Carl Weiser
Enquirer Washington Bureau

WASHINGTON - The bickering and battling among judges on a federal appeals court has "torn up our court," its former chief judge says.

Gilbert Merritt, now a senior judge on the 6th U.S. Circuit Court of Appeals, said appeals courts, more than other courts, rely on give and take among judges - circulating drafts, e-mailing legal points and talking face to face about cases.

"It is affecting the good will and the good nature and the civility of a court that has a lot of responsibility," said Merritt, a Democratic appointee who was chief judge of the court from 1989 to 1996.

The 12 active judges are divided evenly between Republican and Democratic appointees. They meet in Cincinnati to hear cases, usually in groups of three.

"Civility among judges and lack of rancor is a very important element. Reflection and deliberation, the ease of our communication, all of those things have been quite seriously affected," Merritt said. "I have never seen the civility and the context and atmosphere in which judges must operate reach this kind of nadir."

Merritt's successor as chief judge, Boyce Martin, is at the center of a House Judiciary Committee inquiry over his handling of a controversial affirmative action case last year. One conservative group has called for his impeachment.

Neither Martin nor the two Republican-appointed judges at the center of the dispute on the 6th Circuit, Danny Boggs and Alice Batchelder, is talking.

But other 6th Circuit judges are.

"It's unfortunate there is an overlay of arguing and bickering," Columbus-based Judge R. Guy Cole said.

"It's just making life for us as judges less comfortable than we'd like it to be. It gives the public the unfortunate perception that we are dysfunctional."

"The whole process has been wrongly handled and is certainly unfair" to the chief judge, Detroit-based Judge Eric L. Clay said. "It's certainly an unnecessary distraction."

Cole said the court's collegiality is at its lowest point since he began serving in 1996.

"It manifests itself in a variety of ways. There has been unfortunate language used in some of our opinions, which creates the impression that we are at war with one another as a court," he said. "There is no doubt that there is some degree of antagonism that exists now between and among judges."

No Republican appointees would discuss the matter. But the two Democratic appointees said the dispute, while ugly, hasn't harmed the handing down of justice in the circuit, which handles appeals from Ohio, Kentucky, Michigan and Tennessee.

President Robert J. Gehring of the Cincinnati Bar Association said he was unaware of complaints about the dispute affecting the court's ability to hand down decisions or schedule cases. But he said the controversy hurts.

"Whenever there's some question as to the integrity of the judicial system, it probably doesn't bode well for how the public views it," he said.


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