"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.

"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.

According to Judge Boggs and an internal investigation by the court that followed, the 6th Circuit was first petitioned May 14, 2001. Actively serving on the court at that time were Judge Alan E. Norris, appointed by President Reagan in 1986, and Judge Richard F. Suhrheinrich, appointed by President Bush in 1990.

After "a series of decisions in contravention of our rules and policies," Judges Norris and Suhrheinrich retired from active duty.

Eight days after Judge Suhrheinrich retired, Judge Martin referred the case to the panel. The newly constructed panel voted 5-4 to uphold the University of Michigan Law School's affirmative-action program. The Supreme Court later upheld that decision, while striking down affirmative action in the university's undergraduate program.

Also absent from the appeals panel that decided the case was Judge Gibbons, who had been nominated eight months earlier. Less than two months after the affirmative-action decision, the Senate confirmed Judge Gibbons.