Tuesday, November 12, 2002

A long post about politics and judiciary

Inspired by Jeff Cooper's entry into this dialogue that Howard Bashman and I had started up, let me take a few more minutes to mention a couple of cases – just two examples among zillions – that demonstrate that the composition of the judiciary can influence the course of federal appellate decisionmaking.

I represented a union-affiliated health and welfare fund (you can think of it as "health insurance" for simplicity's sake). Like many such funds around the nation, we were trying to recover against the tobacco industry for the costs of treating illnesses that were caused by tobacco. All such cases, I think, were unsuccessful, and mine was too. But I came up – if I do say so myself – with a very clever argument that no one had thought of before, which was a theory of "tortious interference with contract." My theory was well-grounded in the Restatement (2d) of Torts, which is one of the core sources of common law; my argument was innovative but by no means loopy. The question for the Eleventh Circuit was whether Alabama law should be construed to recognize this theory. There simply was no "correct" answer; an equally reasonable opinion could have been written for me, or against me. Long story short: I lost, and the Judges dismissed my brilliant theory in a short footnote that (to my eye, having delved deeply into the case) was quite unconvincing. Now, I am NOT, NOT, NOT saying that the judges who decided the case are unfair, or that they were playing politics with me even on a subconscious level; I like and respect those judges a great deal, and I felt comfortable when I found that they would be on my panel because I know that they are fair. But this, I think, is an example of a case – and such examples are quite common – where the composition of the bench matters a great deal. To be most blunt about it: Just as President Bush knows what he's talking about when he says he wants to appoint judges in the mold of Justices Scalia and Thomas, I would prefer to see the appointment of judges who would be more likely to rule for the plaintiff in a case like this; and judges could do so without departing in any way from the mainstream of American jurisprudence. It would have been fair and honest to rule for me, just as it was fair and honest to rule against me.

Now to the more perilous part, where I roundly criticize a specific decision as being not only "maybe right, maybe wrong, depends on your point of view" but completely bizarrely wrong, and wrong in a way that serves a particular set of interests. When I was preparing for that argument, I came across a then-recent decision of the Seventh Circuit that I thought – and still think -- included perhaps the most obviously wrong broad statement of law I've ever read in a modern federal appellate decision. (The case included a lot of other stuff too, about which I don't really have an opinion; but I'm telling you about the part that struck me). The case was Insolia v. Philip Morris, and the Seventh Circuit in that case said that, when a federal court is trying to figure out a question of state law, and the answer to the state law question is unclear, the default rule should be "defendant wins." Here's the quote that I'm talking about:

Though district courts may try to determine how the state courts would rule on an unclear area of state law, district courts are encouraged to dismiss actions based on novel state law claims. … When confronted with a state law question that could go either way, the federal courts usually choose the narrower interpretation that restricts liability.

If you've had a semester of law school, you'll know why that seems absurd and unfair to me; if not, I'll just say, it's contrary to everything that the Supreme Court and every other court has said about the federal approach to state-law questions for decades, and is avowedly tilted towards defendants (who tend to be corporations, the establishment) and against the plaintiffs (who tend to be consumers/workers/injured persons). And no Sam Heldman-appointee to the federal bench would ever, ever, ever, consider signing on to an opinion that included that statement. I fear that many Bush II appointees would be glad to – and would say "see, we're just following precedent. see Insolia." This matters a great deal; this statement, if widely adopted, could make the difference in many many many cases, and almost always to the advantage of a corporation and the disadvantage of a person.

You may notice, if you're tuned into such things, that the Judge who wrote this statement in Insolia was a Clinton appointee. This shows that a judge's philosophy – including whether he or she would find this statement as bizarrely and obviously wrong as I find it – is a subject far too complex to be reduced to "Republican appointee" vs. "Democratic appointee". And again, I don't mean to say that any judge who followed this statement – or the Judge who wrote the statement – was or would be doing something other than trying to be the best and fairest judge that he or she could be. We're all human, and are motivated by the various things that motivate humans, and sometimes make mistakes. It is possible to criticize (even severely criticize) judicial decisions without decrying the judges themselves; and that is what I mean to be doing.

But getting back to the point: I think that both of these cases that I've discussed – and a million other examples – show that there is much room for different outcomes in federal appellate judging. And predicting whether, how, and to what extent a judge will be swayed by philosophy/politics/belief in any particular case is impossible. But the broad picture is pretty undeniable: this President knows that he wants judges who will be more likely to rule for the corporation against the individual, for the government against the criminal defendant, etc., and I don't want that. Even Chief Justice Rehnquist – in agreeing in an interview not too long ago that Justices have some tendency to want to be replaced by nominees of their own political party – knows what I'm talking about: Presidents can, in a general sense, pick judges who tend to make decisions that political adherents of their own party will prefer. To say that I want more progressive judges is nothing radical; and to say that the politics and policy-preferences of judicial appointees matters, is nothing shocking or disrespectful.

UPDATE: You know, now that I have written the above, in painstakingly obsequious fashion I might add, it seems to me like what they used to call "a penetrating glimpse into the obvious." Does anybody disagree with it? Maybe not.

posted by sam 2:59 PM 0 comments

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