Barbara Grutter v. Lee Bollinger, (01-1447), Kimberly James, Intervening (01-1516)

MOORE, Circuit Judge,

concurring.

I write separately both to note my disapproval of Judge Boggs’s decision to include a “Procedural Appendix” as part of his dissenting opinion and to provide an accurate account of how this case came to be argued before the present en banc court.

I.

In publishing their “Procedural Appendix,” I believe that Judge Boggs and those joining his opinion have done a grave harm not only to themselves, but to this court and even to the Nation as a whole. A court’s opinions state the reasons for its holdings and provide the public with the principled justifications for them. Dissenting opinions typically present principled disagreements with the majority’s holding. Such disagreements over principle are perfectly legitimate and do not undermine public confidence in our ability as judges to do what we have sworn to do because, as a culture, we have long recognized that disagreements over principle are unavoidable. Given this cultural backdrop, disagreements over principle can be phrased in strong terms without damaging the court’s ability to function as a decision-making institution in a democratic society. Judges criticize their colleagues’ reasoning all the time, and, if they are to carry out their oaths of office, they must do so. This robust exchange of ideas sharpens the focus and improves pur analysis of the legal issues.

In the present case, Judge Boggs has written a lengthy and strongly worded critique of the substance of the majority’s holding in the present case. Although I disagree with his analysis and conclusions, I acknowledge his abilities as a jurist.

The final section of Judge Boggs’s dissent, labeled “Procedural Appendix,” however, publicizes disagreements over the internal workings of the court, which, as my colleague states, “do not directly affect the legal principles discussed in this case.” Given that these procedural matters are, at best, peripheral to the matter at hand, the only reason that “it is important that *753 they be placed in the record” is to declare publicly the dissent’s unfounded assertion that the majority’s decision today is the result of political maneuvering and manipulation. The baseless argument of the “Procedural Appendix” is that the decisions of this court are not grounded in principle and reasoned argument, but in power, 1 and that the judges of this court manipulate and ignore the rules in order to advance political agendas. I am saddened that Judge Boggs and those joining his opinion believe these things. But, more importantly, I am concerned that my dissenting colleagues’ actions will severely undermine public confidence in this court. Cf. Memphis Planned Parenthood, Inc. v. Sundquist, 184 F.3d 600, 608 (6th Cir.1999) (Batchelder, J., separate statement on denial of rehearing en banc) (“Our dissenting colleague’s own purposes may be furthered by publicly impugning the integrity of his colleagues. Collegiality, cooperation and the court’s decision-making process clearly are not. And public confidence in the judicial system and in this court clearly are not.”).

Because we judges are unelected and serve during good behavior, our only source of democratic legitimacy is the perception that we engage in principled decision-making. See Planned Parenthood v. Casey, 505 U.S. 838, 865-66 , 112 S.Ct. 2791 , 120 L.Ed.2d 674 (1992). This perception is based both in the reality of our practice — I believe that my colleagues, all of them, strive to decide cases in a principled manner — and in the presentation of our decisions to the public in written opinions.

The decisions of this court are not self-executing but instead must be carried into practice by other actors. They will do so only as long as they regard us as legitimate, as we possess neither the purse nor the sword, but only judgment. For this reason, we are often described as the weakest branch, but a court without purse, sword, or legitimacy would be weaker still. This is not to argue that protecting the relative strength of the judicial branch should be our primary concern. Indeed, we have all sworn to uphold the Constitution, and the Nation needs a strong judiciary to check the occasional excesses of the other branches and, more importantly, to preserve the rule of law.

Our ability to perform these crucial tasks is imperiled when members of this court take it upon themselves to “expose to public view” disagreements over procedure. The damage done by such exposés is, at least in part, the responsibility of those who report them, despite the efforts of Judge Boggs and those joining his opinion to disclaim responsibility for their own conduct. It is understandable, however, that they do so, as their conduct in the present case is nothing short of shameful.

II.

With great reluctance, I find myself forced to respond to Judge Boggs’s inaccurate and misleading account of the procedural facts underlying the present case. 2 *754 As discussed in Part I of this opinion, I firmly believe that matters of internal court procedure should not be exposed to public view. But when one is attacked in the way that the members of the majority have been attacked, it is necessary to present an accurate account of the events in question; to fail to do so would create the impression that Judge Boggs’s assertions are, in fact, correct.

Judge Boggs and those joining his opinion have numerous complaints regarding the procedures that were followed in the present case. In the end, however, their chief complaint is that the present case has been decided by a nine-judge en banc court (“the particular decision-making body that has ... decided [the case]”) rather than an eleven-judge en banc court, and that the members of the hearing panel originally assigned this case (Chief Judge Martin, Judge Daughtrey, and myself) purposefully engineered this result. A number of Judge Boggs’s unfounded assertions involve the May 14, 2001 petition for initial en banc hearing filed by Barbara Grutter. Judge Boggs repeatedly asserts that the “preselected” hearing panel withheld this petition from the other members of the court until after Judges Norris and Suhrheinrich took senior status, on July 1 and August 15, 2001, respectively.

The Sixth Circuit’s private docket, however, indicates that the May 14 petition for hearing en banc was first referred to the hearing panel on August 23, 2001, and it was not received by the panel until several days thereafter. 3 By August 23, both Judges Norris and Suhrheinrich had taken senior status. Even if the hearing panel had taken immediate action to circulate the en banc petition to the whole court on that date, the case would have been heard by the same en banc court that in fact heard it on December 6, 2001. The record simply does not support any other conclusion on this point. Similarly, the June 4, 2001 order holding the en banc petition in abeyance was also referred to the hearing panel in August 2001. Thus, Judge Boggs’s claim that the June 4 order was not circulated to the en banc court, on June 4, is true, as far as it goes, but misleading, because that order was not circulated to any judges at that time, including the hearing panel. This ministerial order was signed by the clerk of the court and was not issued as a result of any action by the hearing panel.

In addition, Judge Boggs’s assertion that the hearing panel violated the rules or internal operating procedures of the Sixth Circuit in not circulating the en banc petition to the entire court after August 23 but prior to October 15, 2001, is simply incorrect. 4 On December 5, 2000, months before the filing of the petition in the present case, Chief Judge Martin instituted a policy regarding the treatment of petitions for initial hearing en banc. This change in policy was spurred by the increasing frequency of such petitions, especially in pro se appeals. In the letter detailing the policy, the chief judge instructed that, when such a petition is filed, the clerk of the court should enter an order, such as that issued in the present case, holding the petition in abeyance until the completion of *755 briefing, and then refer the petition to the hearing panel assigned the eases. This procedure was followed in the present case. In each ease, the assigned hearing panel would then decide, as an initial matter, whether to deny the petition and proceed with the scheduled panel consideration or, if the petition raised a legitimate ground for initial hearing en banc, to circulate the petition to the rest of the court. To my knowledge, no one raised any objection to this policy when it was circulated to the court for comment and instituted in December 2000. Pursuant to this policy, the hearing panel in the present case decided, in September 2001, not to circulate the en banc petition to the entire court. Whatever the prior practice of the Sixth Circuit with respect to the circulation of petitions for initial hearing en banc, see Dissenting Op. at 811 n.43 (discussing petitions filed in the year 2000), the hearing panel in the present case was not required to circulate the May 14 en banc petition under the policy in effect in September 2001.

As Judge Boggs indicates in his dissent, an initial hearing of a case en banc is an extremely rare occurrence. See Dissenting Op. at 814 (“I have been on the court for [sixteen] years, and I do not recall an initial hearing en banc in my tenure.”). Thus, the hearing panel’s decision not to circulate the petition for an initial hearing en banc in the present case — prior to the events discussed infra — is perfectly understandable. Indeed, if the members of the hearing panel had circulated the May 14 petition in September 2001, the other members of the court would have likely voted not to hear the case initially en banc, since Judge Boggs cannot recall any other instance of such a petition having been granted in the past sixteen years. In light of this consideration, however, I do not see how the hearing panel can be faulted for not circulating the petition.

Judge Boggs also objects to the treatment of the present case as a “must panel” case, the composition of the “preselected” hearing panel, and the handling of all actions and motions related to this appeal by the “preselected” hearing panel. These objections are relatively minor, given the subsequent decision to hear the case initially en banc. 5 Indeed, this court’s decision to hear the present case en banc was motivated by the concerns related to the composition of the hearing panel. These concerns were raised by Senior Circuit Judge Ralph Guy in a letter to Chief Judge Martin, which was dated October 15, 2001. The poll letter, issued by the hearing panel to the en banc court that very day, stated the following rationale for circulating the petition for hearing en banc:

Re: Petition for Initial Hearing En Banc; Request for a Poll

Plaintiffs Gratz and Grutter have filed a petition for initial hearing en banc in these two cases concerning the admissions policies of the University of Michigan and its law school. Pursuant to the usual court policy, this petition for initial hearing en banc was referred to the panel hearing the case. The reasons stated for initial hearing en banc were the “exceptional importance” of the case, the “inevitable conflict” with another federal circuit’s opinion in view of the already conflicting decisions of the Fifth Circuit in Hopwood v. Texas, 78 F.3d 932 (5th Cir.1996), and 236 F.3d 256 (5th Cir.2000), and the Ninth Circuit in Smith v. University of Washington Law *756 Sch., 233 F.3d 1188 (9th Cir.2000), and the need for expedited resolution.

The panel that was assigned this case is Chief Judge Martin, Judge Daugh-trey, and Judge Moore. The panel believed that the usual court policy referring a petition for initial hearing en banc should be followed, and that the reasons set forth for initial hearing en banc did not warrant such an initial hearing. The panel already had expedited the appeal process, the conflict between the circuits already existed, and we had not heard en banc any number of other exceptionally important cases.

Because of a question that has been raised regarding the composition of the panel, the panel believes that the en banc court should vote on the petition for initial hearing en banc. Hence the petition is attached for a vote. Since the ease is scheduled to be heard by the panel on Wednesday, October 23, time is of the essence in deciding whether to proceed initially en banc.

Judges Daughtrey and Moore were on the initial panel in 1999 considering questions of intervention. Grutter v. Bollinger, 188 F.3d 394 (6th Cir.1999). The third judge was Judge Stafford, a Senior District Judge from the Northern District of Florida. Pursuant to our “must panel” practice, Judges Daugh-trey and Moore have continued on this case. Chief Judge Martin was substituted for Judge Stafford.

The panel requests that the en banc court be polled regarding the petition for initial hearing en banc.

The vote for hearing en banc was seven in favor — Chief Judge Martin, Judges Siler, Daughtrey, Moore, Cole, Clay, and Gil-man — with no votes cast against hearing en banc. Neither Judge Boggs nor Judge Batchelder voted in this matter, but, pursuant to our rules, their non-votes were in effect votes against the en banc hearing of the present case.

This court voted to hear the present case en banc in order to resolve the concerns of certain members of the court about the composition of the hearing panel. Judge Boggs and those joining his opinion now complain about the composition of the en banc court. But, as I have demonstrated supra, these complaints are without merit. Moreover, even if the “preselected” hearing panel had acted as Judge Boggs claims, which it did not, it is important to note that this did not deprive Judge Boggs and the other dissenters of the opportunity to call for initial hearing en banc on their own initiative at any time.

The internal operating procedures of this court permit any active judge to request a poll for hearing a case initially en banc, regardless of whether a party has filed a petition for hearing en banc. See 6 Cir. I.O.P. 35(c). If, then, Judges Boggs and others were concerned with the selection of the hearing panel in the present case at some point prior to October 15, 2001, there was an internal procedure by which they could have addressed those concerns. As the present appeal was filed on April 2, 2001, prompt action by Judges Boggs and the other dissenters would have resulted in an en banc hearing before a different en banc court — or, in other words, Judge Boggs and the other dissenters could have called for an en banc hearing before the eleven-judge en banc court they now argue was deprived of this opportunity.

The simple fact of the matter is that the present case was treated as a “must panel” case as early as July 2000. In Grutter v. Bollinger, 188 F.3d 394 (6th Cir.1999), a panel consisting of Judge Daughtrey, myself, and Judge William H. Stafford, a senior district judge from the Northern District of Florida, reversed district court *757 orders denying the motions of prospective intervenors to intervene in the present case and in its companion case, Gratz v. Bollinger. The opinion in the intervenors’ case was issued on August 10, 1999. Subsequent to that decision, the defendants requested permission to appeal the district courts’ certification of plaintiff classes in Grutter and Gratz, pursuant to Federal Rule of Civil Procedure 23(f). On July 10, 2000, the clerk of the court contacted Judge Daughtrey and me regarding whether those appeals (Sixth Circuit docket numbers 00-0107 and 00-0109), which were consolidated for purposes of appeal, represented a “must panel” situation. We decided that these cases did represent a “must panel” situation, where subsequent matters should be returned to the original panel due to their interrelatedness with the original matter, and these cases were transferred to a motions panel including Judge Daughtrey and myself.

At that time, Chief Judge Martin was substituted for Judge Stafford on the motions panel. Sixth Circuit rules give the active members of a panel the option of recalling the district judge or senior circuit judge from another circuit who sat on the panel previously or replacing that judge with a third Sixth Circuit judge. See 6 Cir. I.O.P. 34(b)(2). Although that rule states that the third Sixth Circuit judge should be drawn at random, Chief Judge Martin has frequently substituted himself in a variety of matters, of varying degrees of importance, throughout his tenure as chief judge, in order to avoid inconveniencing other circuit judges. Thus, it was not unusual for him to place himself on the panel in July 2000. To my knowledge, no one has objected before to Chief Judge Martin’s filling of vacancies in other cases, even though his practice of doing so is a matter of common knowledge among the judges of this court.

This motions panel denied the defendants’ request for permission to appeal the class certification decisions on September 26, 2000. The same motions panel also granted the parties’ request for permission to file interlocutory appeals in Gratz, pursuant to 28 U.S.C. § 1292 (b), on March 26, 2001 (Sixth Circuit docket numbers 01-0102 and 01-0104).

When the appeal in the present case was filed, the defendants moved this court to stay the district court’s order enjoining the Law School from considering race as a factor in admissions. The panel of Chief Judge Martin, Judge Daughtrey, and myself granted this stay in a published order on April 5, 2001 (Sixth Circuit docket number 01-1447). See Grutter v. Bollinger, 247 F.3d 631 (6th Cir.2001). On that same date, the chief judge ordered that the appeals in Grutter and Gratz be expedited, setting August 1, 2001, as the deadline for the filing of briefs and appendices. Oral argument was set for the court’s October term.

Thus, it should have been clear to the other members of the court, as of the published order of April 5, 2001, if not sooner, that the present case was being treated as a “must panel” case and that the hearing panel would consist of Chief Judge Martin, Judge Daughtrey, and myself. At any point thereafter, Judge Boggs or any other member of the en banc court — including Judges Norris and Suh-rheinrich, before they took senior status— could have called for a poll to determine whether the case should be heard initially en banc. If there were questions regarding the composition of the hearing panel, then Judge Boggs and those joining his dissent could have raised those questions through this means at any time.

Judge Boggs and those joining his dissent did not raise these concerns in this manner, however. In fact, the dissenters *758 themselves did not raise any complaints with the composition of the en banc court when the en banc petition was circulated, when the case was argued before the en banc court, or even in the first circulated draft of Judge Boggs’s dissent. The lateness of their complaints suggests that their primary complaint is with the outcome of the present case rather than with the procedures that were followed in arriving at that outcome. But unhappiness over the outcome of the case cannot justify the dissenters’ “Procedural Appendix.” Judge Boggs’s opinion marks a new low point in the history of the Sixth Circuit. It will irreparably damage the already strained working relationships among the judges of this court, and, as discussed in Part I supra, serve to undermine public confidence in our ability to perform our important role in American democracy. And for what reason? What purpose does the “Procedural Appendix” serve? Its author does not defend its inclusion, except to suggest that by placing his version of events in the record, some “remediation” may be “possible.” Dissenting Op. at 814 n. 49. Whatever “remediation” Judge Boggs may envision is properly the subject of a court meeting, but not the basis for an unprecedented “Procedural Appendix.”

. Judge Boggs responds in his dissent that he does "not contend that the legal opinions of any member of this court do not represent that judge’s principled judgment in this case.” Dissenting Op. at 814. He does contend, however, that the result in the present case represents unprincipled procedural maneuvering by members of this court. It is this contention to which I object.

. This response is truly a recourse of last resort, as several members of this court have endeavored to persuade Judge Boggs to withdraw the "Procedural Appendix.” He has steadfastly refused to do so. The three members of the hearing panel have also personally assured Judge Boggs that we did not engage in the manipulation of which he has accused *754 us, but he has refused to accept our assurances.

. My own records indicate that I first saw the May 14, 2001 petition on September 26, 2001, at which time I consulted with the other members of the hearing panel about circulating the petition to the whole court.

. Of course, given the composition of the court on August 23, 2001, it would not have made any difference to the outcome of the case whether the en banc petition had been circulated on that date, or in September, or in early October 2001.

. These objections are also minor in that Judge Boggs does not argue that any of the decisions with which he finds fault actually changed the outcome of the present case.