On February 19, 1992, a panel of the D.C. Circuit decided Lamprecht v. FCC. The panel included Chief Judge Mikva, and Circuit Judges Thomas and Buckley. (Yes, that would be Justice Thomas and the James Buckley from Buckley v. Valeo.) The opinion held that the FCC violated the Equal Protection Clause by granting an applicant extra credit for being a woman.
Several months earlier, on September 30, 1991, The Legal Times published a report that contained details of draft opinions in the case. (Senate Mulls Thomas' Controversial Case; Draft Opinion Would Overturn FCC Ruling On Gender Preferences, LEGAL TIMES, Sept. 30, 1991, at 20.) Judge Buckley wrote a concurring opinion that addressed this leak:
This litigation deals with a sensitive subject, and it is not surprising that it should have aroused some passions. Unfortunately, this case has also proven the occasion for a most serious breach of trust. I refer to an article that appeared on September 30, 1991, in The Legal Times, which purported to report in some detail on the contents of preliminary drafts of the majority and dissenting opinions. The issuance today of those opinions in their final form will demonstrate the general accuracy of the information divulged to The Legal Times.
The seriousness of this violation cannot be overstated. Each member of this panel has been aggrieved by it, as have the parties who brought this case to us for adjudication. Moreover, because one or more of their number has been guilty of a willful breach of trust, this incident must cast a shadow over the dozen or more able young law clerks who had become privy to the preliminary drafts. I say "willful" because the information in the published reports was too detailed to have been the product of inadvertent disclosures.
We cannot, of course, repair the damage that may already have been done to one or more of the parties as a result of this premature disclosure. But we can and must take steps not only to ensure against a repetition in the future, but to demonstrate the seriousness with which we take this violation. I believe the appropriate measure is for this court to initiate a formal investigation in an effort to identify the source or sources of this disclosure, and I urge my colleagues to do so.
The hemorrhaging of confidential information has become endemic in the legislative and executive branches of our government, with untold cost to their ability to function. It is essential that we prevent this disease from invading the judiciary, as this would inevitably undermine the public confidence that is one of the major strengths of our legal system.
The timing makes this leak even more egregious. Lamprecht was argued in January 1991. Judge Thomas was nominated to the Supreme Court in July 1991. The first hearing began on September 10, 1991. On October 4, 1991, Senator Ted Kennedy cited the Legal Times story as a reason to vote against Thomas.
Judge Thomas' record reveals that he may not be able to shed his past as easily as he asks us to believe. According to recent press reports, just 3 months ago Judge Thomas prepared a draft opinion in his first case on the D.C. Court of Appeals to raise a significant question of deference to Congress. Judge Thomas circulated his draft opinion to other members of the court, but no further action was apparently taken after his nomination to the Supreme Court, and the opinion has not been made public. This case, Lamprecht versus FCC, involved a challenge to Congress' decision to increase the number of women and minorities with scarce Federal broadcast licenses by requiring the FCC to grant qualified women and minorities some preference in awarding such licenses. Congress decided that such an increase would benefit all Americans by promoting diversity in broadcasting. In the case, the FCC had awarded a license to a woman, and the award was challenged by a competing applicant for the license on the ground that the statute directing the FCC to continue its preference policy was invalid. According to press reports, Judge Thomas' draft opinion accepted that argument, on the ground that Congress had offered inadequate evidence when passing the statute that awarding licenses to women would increase broadcasting diversity. Last year, the Supreme Court upheld the congressional preference for minorities in Metro Broadcasting versus FCC. During the hearings, Judge Thomas specifically testified that he had no reason to disagree with the Court's decision in Metro Broadcasting. He also stated that he accepted Supreme Court rulings directing courts to give greater preference to congressional enactments than the State or local laws. But Judge Thomas never mentioned Lamprecht versus FCC in either of these exchanges, even though he obviously has been deeply involved in both aspects of the questions he was asked-his views on the statutory preference for women and minorities, and his views on the degree of deference courts must give to Congress. It is not clear whether Judge Thomas' D.C. Circuit opinion will ever see the light of day. What is clear is that he was not entirely candid with the committee in discussing this issue, and that the open mind he professed to have on the Metro Broadcasting case may well have been much more closed than he led us to believe.
Thomas was confirmed by the full Senate on October 15, 1991. And the Lamprecth opinion did see the light of day. There is nothing new under the sun. Everything that is old is new again. The Supreme Court should issue Dobbs, with haste. To quote Judge Buckley, "The issuance today of those opinions in their final form will demonstrate the general accuracy of the information divulged to The Legal Times." So be it, if Politico was correct.
As far as I know, there was no investigation performed by the D.C. Circuit. I hope the Supreme Court will take this egregious leak seriously.
On a personal note, I recently saw Judge Buckley at a reception. He is 99 years old. I geeked out, and the only thing I could muster was, "I teach your Buckley v. Valeo case." He laughed and thanked me.
Update: I located the Legal Times article on Lexis, and have pasted it after the jump.
DRAFT OPINION WOULD OVERTURN FCC RULING ON GENDER PREFERENCES
Word that Supreme Court nominee Clarence Thomas has written and circulated-- but not released--a controversial affirmative-action ruling has complicated Thomas' quest for the high court.
Questions about the ruling, and whether politics may have prompted Thomas to delay its release, were raised Sept. 27 as the Senate Judiciary Committee split 7-7 and sent Thomas' nomination to the Senate floor without a recommendation.
In the case, the most controversial Thomas has heard as a federal judge, the court is expected to overturn a decision by the Federal Communications Commission awarding a broadcast license to a woman under the agency's gender-preference policy.
Thomas' own explanation was offered to the Senate Judiciary Committee via Sen. Arlen Specter (R-Pa.). Specter, a key Thomas backer, said he had contacted Thomas the morning of the committee vote and had been assured that the opinion had not been withheld.
Thomas categorically denied withholding any opinion, Specter said at the meeting.
Thomas' confirmation by the full Senate is still expected, but both sides are bracing for a battle.
Legal Times reported Sept. 26 in its American Lawyer Media, L.P., affiliates that Thomas had drafted, but not released, the opinion in Lamprecht v. FCC.
Sources at the U.S. Court of Appeals for the D.C. Circuit, where Thomas sits, told Legal Times that the opinion was in nearly finished form and circulated to other judges prior to Thomas' July 1 nomination to the Supreme Court.
In the opinion that he circulated before his nomination, sources who have seen it say. Thomas addressed head-on the issues--preferential policies, equal protection, and deference to Congress--that many senators sought to grill him on.
Armed with Thomas' ruling, senators could have probed his views more deeply and, perhaps, more deftly. But the opinion didn't surface.
The logical conclusion is that the opinion would have issued but for the fact that Judge Thomas wanted to wait until after the Senate confirms him, says a source familiar with both the internal procedures of the courthouse and the Lamprecht case.
That explosive charge has provided fresh impetus to the lagging liberal effort to stop Thomas' confirmation.
Thomas opponent Sen. Howard Metzenbaum (D-Ohio) called on the committee to inquire into the matter prior to any full Senate action, and other senators said further questions were likely. After the meeting. Judiciary Chairman Sen. Joseph Biden Jr. (D-Del.) declined comment when asked if he would press the issue further.
The delay in releasing the Lamprecht opinion may be caused by factors that have nothing to do with politics.
The Lamprecht case is one of more than a dozen majority opinions assigned to Thomas before his nomination that still have not been completed, according to two sources inside the U.S. Courthouse. He has a reputation for being slow to finish his opinions. In addition, most of his time over the last three months has been consumed preparing for what turned out to be five days of testimony before the judiciary panel.
Thomas declined to comment last week, and the White House said it would be inappropriate to discuss a pending case. Sen. John Danforth (R-Mo.). Thomas' main Senate champion, said. The only thing unusual here is that speculation about a pending case has emerged from the courthouse, before the case has been decided.
The case arose from broadcaster Jerome Lamprecht's challenge to the FCC's preferential treatment of Barbara Marmet in authorizing her to operate a new FM broadcast station in Middletown, Md. Citing congressional directives, the FCC enhanced Marmet's chances because of her gender, thus allowing her to edge out Lamprecht for the license.
The appeal was argued at the D.C. Circuit on Jan. 25 before Thomas, Chief Judge Abner Mikva, and Judge James Buckley. After a post-argument conference. Buckley, as the senior majority judge, assigned Thomas the writing of a majority opinion overturning the FCC's decision, according to three sources close to the case. Mikva disagreed with his colleagues and prepared to write his dissent.
Draft Opinions Circulated
Both Thomas' draft majority opinion and Mikva's dissent were circulated among the three judges of the panel several weeks before Thomas' nomination, according to two courthouse sources. The drafts were widely discussed among court staff, especially among the D.C. Circuit's network of 37 law clerks.
Although Thomas' draft opinion was not provided to Legal Times, seven sources interviewed have read it closely.
According to some of these sources, Thomas wrote a lengthy, carefully considered opinion.
All of the kinks had been worked out, says one person who saw Thomas' opinion.
In that ruling, Thomas tracked closely the themes both he and Buckley pursued at the Jan. 25 oral argument, this source and others maintain.
At the oral argument, Thomas repeatedly pressed C. Grey Pash Jr., an FCC attorney arguing for the agency, for empirical evidence that female ownership of broadcast channels increased the agency's policy goal of promoting programming diversity.
[I]t seems as though we are promoting diversity for diversity's sake, without an explanation as to what effect it will have on the operation of the stations, Thomas said during the argument.
But what difference does it make if a woman owns a station or if women owned all the stations, other than that they owned the station? Thomas asked Pash, a lawyer in the Litigation Division of the FCC's Office of General Counsel. Does it make a difference in programming? Does it make a difference in content of the points of view? Does it make a difference in the editorials?
In order to find for Lamprecht, Thomas would have had to distinguish the case from Metro Broadcasting Inc. v. FCC, a June 1990 Supreme Court ruling that upheld the FCC's preferences based on race or ethnicity in the awarding of new broadcasting licenses.
Pash argued that Metro, which was based on the equal-protection clause of the Constitution, controlled Lamprecht and, thus, compelled the D.C. Circuit to uphold the agency's ruling.
Thomas, though, apparently was not convinced.
At least in the case of minorities, there was documented evidence that there was a difference in programming, Thomas told Pash.
That skepticism infused Thomas' draft ruling, according to those familiar with it. The nominee zeroed in on the lack of empirical evidence about the effect of female ownership on programming to distinguish the FCC's gender-preference policy from the race-preference policy upheld by the Supreme Court.
Mikva, on the other hand, relied on the authority of the high court, according to those familiar with his draft dissent. Contacted last week, Mikva angrily denounced the reporting about opinions that haven't been released as a violation of the law and of judicial confidentiality.
Ideological Clash
The agency's race- and gender-preference policies are both underpinned by congressional mandates. According to one source who has studied both the Thomas and Mikva drafts. Thomas and Mikva clashed on the degree of deference the court should give to Congress.
Mikva focused more on what Congress had done, saying that, under Supreme Court precedent, substantial deference should be given to Congress' finding of fact, says the source.
Mikva apparently gave great weight to the fact that Congress, in a law re-enacted three times, concluded that a gender preference was necessary for increasing programming diversity.
During oral argument. Buckley, who sided with Thomas in the case, expressed his doubts that Congress can mandate preferences by a seat-of-the-pants judgment.
Thomas, in both oral argument and his draft opinion, also focused on the need for more proof from the FCC--and Congress--that gender preferences enhance programming diversity.
Thomas, by contrast, seemed to focus on what was in the record before the FCC--what was the FCC looking at when it made the decision, says the source who read both drafts.
Thomas' draft ruling could have given Judiciary Committee senators their best glimpse yet of how a Justice Thomas might deal with Supreme Court precedent. Some may not have liked what they saw.
The Supreme Court's 5-4 majority opinion in Metro was the last opinion to be delivered by Justice William Brennan Jr. Brennan was joined by Justice Thurgood Marshall, the justice Thomas is nominated to replace. It was Marshall, in his last ruling, who put Metro on his list of cases in danger of being overruled once he left the Court.
Thomas, in fact, was asked about the Supreme Court's ruling in Metro by Sen. Specter. He replied that he had no reason to disgree with it [Metro], and that answer appeared to satisfy Specter, even though the nominee was using a judicial term of art that did not commit Thomas to a view of the case. (See excerpts. Page 20.)
And without knowing about Thomas' draft opinion in Lamprecht. Specter was unable to follow up on the applicability of the high court's authority to gender preferences or on the nominee's views on the deference a court should pay to Congress' findings of fact.
Just prior to the Judiciary Committee's Sept. 27 vote on Thomas, Specter said he was satisfied [Thomas] did not dissemble or mislead the committee in any way.
The Lamprecht case also arose directly in testimony before the Senate Judiciary Committee on Sept. 17. Marcia Greenberger, president of the National Women's Law Center, testified that Thomas' apparent opposition to the gender preference, evident in oral argument, might be expressed in the eventual ruling in Lamprecht.
Sen. Orrin Hatch (R-Utah). responding to Greenberger's concerns and to her reading of excerpts from Thomas' cross-examination of FCC counsel Pash, suggested that the nominee may simply have been playing devil's advocate.
But Thomas may have been playing for keeps. Why he did not release his forceful opinion in Lamprecht has become the subject of intense, and pained, speculation among many people inside and outside the courthouse.
Breach of Confidentiality
The internal debate over Lamprecht has caused an extremely rare breach of courthouse confidentiality. The reasons for the speculation about the delay stem in part from opposition to Thomas' nomination; some Democratic staffers on the Senate Judiciary Committee as well as liberal activists have been looking into the matter.
But others within court circles are more concerned about the judicial process. They say they fear that Thomas may have allowed political concerns to distort his duties.
Whatever the motivations. Sen Alan Simpson (R-Wyo.) on Friday said that the leakers of the information should be fired. Simpson added that any Senate inquiry into the draft ruling would violate the separation-of-powers doctrine. (See related article on Page 21.)
Even those who believe that Thomas was manipulating his calendar cannot be categoric. They point to the importance of the Lamprecht opinion and the need to get it right, the need to grapple with a strong dissent, and the month-long absence in late June and July of his fellow majority judge, James Buckley, who most of that time was incommunicado.
Not even a fax machine, says Buckley, who notes he was polar-bear sighting in Wager Bay in the northwest corner of Hudson Bay, Canada.
Asked about the slow progress of the case, Buckley responded: You must know that I can't comment on a pending case.
Aside from Buckley's absence, defenders of Thomas also point to the extraordinary demands placed upon a Supreme Court nominee's time.
Because of the way hearings are conducted, the nominee has to stop working altogether on court business and start prepping, says a source familiar with the operations of Thomas' chambers.
Still, Thomas has issued two other opinions--one majority and one dissent--since President George Bush named him to the high court in July.
Even had Lamprecht issued in June, at the time Thomas was circulating his opinion to Buckley and Mikva, the decision would have lagged well behind the court's median disposition time for deciding cases after they have been argued. That time is 1.6 months for the D.C. Circuit. The national average is 2.5 months.
It has been eight months since the case was argued.
There is also precedent for judges departing the D.C. Circuit for higher office simply to leave their cases for other judges to worry about. Justice Antonin Scalia left more than a dozen opinions outstanding when he departed the D.C. Circuit for the Supreme Court. Apparently none, though, were quite as sensitive as the Lamprecht case.
On the other hand, former D.C. Circuit Judge Robert Bork took his licks in the media and, perhaps in small measure, on the Senate floor when he released a controversial First Amendment decision--APWU v. U.S. Postal Service--while the Senate was still in the throes of considering his nomination.
The Lamprecht decision has stalled at a crucial point in the court's internal procedures for disposing of cases. After giving his opinion to his panel colleagues and receiving Mikva's dissent. Thomas still had to respond, if he chose, to the dissent and to incorporate comments, if any, from Buckley.
After that process, Thomas' opinion would usually be printed and circulated to the full D.C. Circuit. His fellow judges then would have seven days to comb for missed precedents and glaring errors, and the decision would then be issued.
Thomas' Lamprecht opinion, however, never made it to the printer. That could be a result of the difficult issues Lamprecht presents. In rare instances at the D.C. Circuit, where a panel may be ideologically split on a controversial, complicated case, judges may take months to advance a case out of the panel.
But aside from these rare cases, the more usual progress of an opinion--once both the majority opinion and the dissent are circulated--is a resolution of the case within a matter of weeks.
Under Senate rules, the Thomas nomination could come up as early as Thursday, although that is unlikely. Sen. Patrick Leahy (D-Vt.), who voted against Thomas on Friday, said in an interview that the draft ruling in the FCC matter may very well affect some votes in the Senate.
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