'The case was fixed'

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Senate Democratic staffers and a judge appointed by President Carter made extraordinary efforts last year to ensure that a liberal majority sat on the federal appeals court that heard the Michigan affirmative action cases, according to internal Democratic staff memos.

Staffers for Sen. Edward M. Kennedy, Massachusetts Democrat and senior member of the Judiciary Committee, sought to delay one of President Bush's nominees to the 6th Circuit U.S. Court of Appeals based on concerns that the new judge might strike racial preferences as unconstitutional, according to the memos obtained last week by The Washington Times.

"The thinking is that the current 6th Circuit will sustain the affirmative action program, but if a new judge with conservative views is confirmed before the case is decided, that new judge will be able, under 6th Circuit rules, to review the case and vote on it," staffers wrote in an April 17, 2002, memo to Mr. Kennedy advising him to slow the confirmation process for Tennessee Judge Julia S. Gibbons.

"The case was fixed," Tom Fitton, president of the legal watchdog group Judicial Watch, said yesterday. "It ought to be examined by the Ethics Committee."

After reading about the internal memos, Mr. Fitton said he wondered if there were any communications between Kennedy staffers and then-6th Circuit Chief Judge Boyce F. Martin. Judge Martin has since been accused of judicial misconduct for manipulating the makeup of the appeals-court panel that heard the case, which involved white students who said they were discriminated against by the University of Michigan's admissions policies.

"It raises questions about whether Kennedy's staffers were in cahoots with Judge Martin," Mr. Fitton said. "This brings the misconduct case back to the Senate in terms of investigative leads."

The accusations against Judge Martin came from, among others, a 6th Circuit colleague who wrote an unusual appendix to his dissenting opinion. In his dissent, Judge Danny Boggs said Judge Martin -- who was appointed to the bench in 1979 by President Carter and who was the circuit's chief judge at the time it heard the Michigan case -- violated several court rules by naming himself to the panel hearing the case.

"Under this court's rules, these cases generally would have been assigned to a panel chosen at random," Judge Boggs wrote in his May 2002 dissent. "This was not done."

More alarming to court watchers, however, was evidence that Judge Martin had postponed the affirmative action case until two Republican-appointed judges had retired from active duty.