Is it possible that the Sixth Circuit en banc
panel that heard the Michigan case was tampered with? The Volokh Conspiracy
says "maybe." Elaine Jones of the NAACP Legal Defense Fund wrote to Sen. Ted Kennedy (D-Swimming Pool) to hold off on any new 6th Circuit nominees because
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 judge will be able, under 6th circuit rules, to review the case and vote on it.
There was such a judge awaiting hearing who was "uncontroversial". Conservative groups are outraged.
Juan "Non-Volokh" says that outrage is about all we'll get.