Episode 23. Judicial Politicization

Everyone wants to know if they have a good judge. Meaning, "Is the judge inclined to see the case the way I see it?" Robert Sallander gives a timely, post-election discussion on the politicization of the judiciary and how advocates can effectively respond. 

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Transcript

Hello everybody, welcome to Coverage Council is in. In this episode

I want to talk about knowing your judge in most declaratory relief cases involving

insurance coverage the objective is to get a judicial interpretation of a

policy provision And that's going to be done by some  judge when there's some 

adjudication in most cases So you have to know who your judge is and what she or

he Does or thinks or is inclined to do or think This issue comes up for me At

this time because over the last three months. I've had Experiences with judges and

heard two speeches that talk about the politicization of the judiciary.

And so I wanted to talk about that a little bit because it also dovetails with the

concept I talked about in a previous episode about drafting an initial case analysis.

One of the elements of an initial case Analysis is to talk about your judge or the

court you're in, whether it's conservative, whether the judge is a plaintiff -leaning

judge or a defense -leaning judge, whether the judge is anti -insurance. There are

many ways of figuring out this information, and I'll get to those in a minute,

but I wanted to talk about just the politicization aspect and the experience I had

from hearing these two speeches recently. I want to begin by reading from a blog

posted on September 21, 2021 by Andrew Breiner in blogs.

Something that Mr. Breiner says, and I'm reading now, quote, "Traditional ideas of

law hold that judges and justices make decisions based on a dispassionate application

of the law to the facts at hand, with no regard for the political ramifications of

that decision. While justices may see themselves that way, they are often perceived

as essentially politicians, political actors who want to shape the world to match an

ideology, and who use law as a tool to achieve that goal.

While the Supreme Court is most prominently perceived as politicized, these attitudes

extend to other parts of the federal judiciary." Now that's an interesting comment

that Mr. Briner makes, and I'm particularly keyed in on his statement that justices

may see themselves as dispassionate observers and applyers of the law to the facts

at hand. That is what retired Justice Thomas Griffith said in a talk I attended in

Oakland, California a couple of months ago. Judge Griffith,

or Justice Griffith, is an interesting person. He was appointed to the United States

Court of Appeals for the D DC Circuit by President George W. Bush in 2005.

So right there, it's the DC Circuit is one of the most important courts in the

land, often referred to as second in power only to the Supreme Court.

So it's a powerful, influential court. The second point from that is that he was

appointed by a Republican president. So the implication there is that Justice Griffith

was a registered Republican, and indeed he was. He retired from the D .C.

Circuit in 2020 and is currently special counsel at a law firm of Hunt and Andrews

Curth, and he's also a fellow at the Wheatley Institution at Brigham Young

University. Again, indications that he might be conservative -leaning.

However, given all those conservative qualifications, in 2021,

President Joe Biden didn't appointed Justice Griffith to the Presidential Commission on

the Supreme Court. So here's a Democratic president appointing a Republican to a

Presidential Commission, indicating that Judge or Justice Griffith's ideology may not

adhere to his conservative leanings,

or at least perceived conservative leanings. And so this gets to the point that he

was making in the talk that I heard him give. He was encouraging lawyers to stop

with the politicization of the judiciary. His point was that judges work very hard

to be dispassionate, to not let their ideologies affect them and their decisions,

and that they are, as the blogger said, dispassionate applyers of the law to the

facts of the case. Well, he wants lawyers to stop promoting the apparent

politicization of the judiciary, but I think it's naive to think that judges aren't

in some way influenced by their ideologies, even if you wanna say their ideology is

just their worldview. Some people, some judges are more progressive than others,

some are more conservative and those world views affect how they might want to

interpret a policy provision or how they see a set of facts. So it is really a

practicality that we're not going to get away from,

that judges are human beings, and they're going to see the world a certain way.

And as advocates, we need to know how our judge sees the world.

Ways that you can find this out are, of course, the press releases that exist.

it's very easy to find out who appointed a judge and in California for example we

have we have judges who are appointed and we also have judges who are elected but

they all have a political party affiliation and the person appointing them is either

a crowd or a Republican governor in California most recently it's Democratic

governors. So we have some sense that they're left leaning or you might want to

call it progressive or you might want to call it liberal however you see it that

tells you something. Then we have different services that are out in the marketplace,

websites like The Robing Room or Trellis Law, these things have reviews of judges.

And they will talk about the judges' practice prior to becoming a judge.

Were they a plaintiff's attorney? Were they a public defender? Were they a district

attorney? Were they a defense attorney. So you get some sense from those things.

But the best way to do it is to go on Lexis or Westlaw or any other database

where you can research case decisions and find out what their decisions are and read

their rulings and see if you can find where they have ruled on issues similar to

yours, or whether you can detect some particular form of worldview that the judge

may have from the way the judge has reasoned other cases.

These are the important things to do, and it's important to do it quickly.

For example,

In California, we have Code of Civil Procedure, Section 170 .6,

which allows a litigant to use a peremptory challenge to disqualify a judge for no

reason. If you don't like the judge for any reason, you can disqualify her.

You get one bite at the apple, so you need to be careful and need to know who

the other judges on the bench are to whom you might get reassigned.

So keep in mind here that sometimes the devil you know is better than the devil

you don't. But in any event, you're going to have some ability to disqualify an

unfavorable judge in California. In the federal system, you can make a motion under

28 USC section 144 or section 455 and there are some other states,

Florida, Texas, Illinois,

Soda, Colorado, Michigan, New Jersey, Nevada, Georgia, and perhaps others that have a

peremptory challenge type

approaches similar to California. And I have not done the research to know if all

50 states have some way of seeking recusal of a judge for some kind of bias or

prejudice against your client but I suspect there are those sorts of opportunities.

So early on when you get a case and you find out about the judge that's been

assigned you need to do the research quite quickly to determine whether that's a

judge you can live with

And you can find ways of advocating in a way that the judge sees the case your

way. That is, after all, the role of the advocate. So,

like picking a jury that knows you like you and wants to find in your favor, you

need to find a judge who you can appeal to in ways that she's going to want to

find in your favor. So that's step one in this. The point that Justice Griffith

made about judges working hard to avoid

bias, I guess, is how I would say it, or avoid promoting an ideology,

and rather being dispassionate suppliers of the law to the facts.

In my experience, most judges are like that. I've had some exceptions,

and I've also had some judges who I've been able to turn.

For example, a

Superior Court judge, it was a motion for summary judgment.

The statute at issue was really the centerpiece of the motion and I was advocating

an interpretation of that statute. The judge just said from the bench,

"Mr. Salender, you're out of step with the entire bar in how you interpret that

statute. Well, you can't let that kind of comment throw you. So I said,

well, your honor, I don't know what the entire bar thinks about the statute, but I

do know what the statute says. And I went back to the statutory language. And as

it turned out, when the judge looked at that language and what I was saying about

it, he adopted my interpretation. So there is an instance where this judge came in

with preconceived notions, but he was honestly trying to do the right thing,

and he didn't let his ideology or his past experience or what others had told him

influence his decision -making. He made an independent decision based on the language

of the statute, but I had to be ready with the language of the statute and know

him and know that he would want to follow the statute as written,

not as interpreted by somebody else. In contrast to that judge,

I was set to try a case in New Jersey. I was defending a personal injury action

and the plaintiff was in bad shape. He was a quadriplegic.

He was, didn't make a lot of money and had been out of work anyway for quite a

while so he was on welfare. He had substantial need for ongoing medical treatment,

but he had a bad liability case. And the New Jersey trial judge called me and told

me that he wanted to settle the case, even though he knew I had a strong liability

case and would probably win in front of the jury.

He said the right thing to do is to pay this person money because the person needs

money and I was scratching my head about that because

Yes, we have compassion for the person who's ill but people get sick all the time

and It's not up to this particular insurer to cover his medical bills or pay him

$2 to $3 million so that he can live comfortably. That's not the idea.

At least as I understand tort law, the idea is to have the responsible person pay

for it. But this judge wanted to make sure that this guy got money because it was

the right thing to do, even though the judge admitted that the defendant was not

responsible. Well, we did not settle. The judge continued to put his finger on the

scale and denied all the motions in lemony that the defendant filed and granted all

the motions in Lumine that the plaintiff filed, so the judge was clearly trying to

affect the outcome of the case rather than being a dispassionate,

uninterested observer. So here we have two examples of judges who are actively

engaged in the litigation process, but one was more honest in his approach than the

other. The other was using his power to affect an outcome. The other was trying to

reason and deal with interpretation of a statute. So that shows sort of a 50 /50

wanted. I want to skew it more to judges are trying to do the right thing by

talking about a judge who in right before a trial,

she was really pressing me to settle the case.

And my client wouldn't do it. My client was not interested in playing, paying the

plaintiff money did not feel there was liability and the judge was pushing the other

way. Well, that's fair in a settlement conference. At the end of the trial,

though, when I got a jury verdict in my favor,

the judge called me into her chambers and said, "I didn't really recognize how

strong your case was until your closing argument? Well,

at one level I feel that was a failure on my part by not making it clearer to

her, but I also think it was an opportunity for her to hear all of the facts,

to go through a trial, to hear what the plaintiff had to say, to hear what the

defense had to say, and even So at the beginning of the case, she really wanted it

settled and thought the defendant should settle. She understood by the end of the

case why that wasn't the right outcome. That judge has now become a mediator and I

like to use her in mediations for obvious reasons. So, these are examples of some

judges promote this idea that they are trying to shape the world to fit their

ideology, other judges don't, and I think it's the majority of judges

that are trying to be the dispassionate or the pliers of law to fact.

But I wanna cite something else.

This is from the Rutgers University Eagleton political journal.

This came out on April 16th, 2024. The author of this article is Freya Quinn,

and the title of the article is The Growing politicization of the U .S.

Supreme Court. And there are a couple of things that she says that I'd like to

read to you. "The growing politicization of the Supreme Court is done in part by

the process of selecting and ceding justices enhanced by media attention and

influence, altogether leading to a failed sense of trust that the American people

have in democracy and democratic institutions.

Then another news release,

this is from NYU on October 2, 2024, this news release concerns a paper titled

"Judges, Judging Judges - Partisanship and Politics in the Federal Circuit Court of

Appeals." And I haven't read that paper, but the summary that NYU is putting out

here says that this paper found that

Panels of Democratic judges are 6 .9 percentage points more likely to reverse

Republican trial judges compared to Democratic ones, whereas Republican panels are 3 .6

points less likely to reverse fellow Republican judges according to the findings.

So the conclusion of the paper is that federal judges' decisions do show evidence of

political polarization. I think that's pretty interesting and in contrast to what

Justice Griffith had to say. And finally,

I want to read from a book that just came out this year,

2024, written by Erwin Chemerinsky. The title of the book is "No Democracy Lasts

Forever."

And in this,

in chapter 5 of that book, Dean Chemerinsky, by the way,

he's Dean of the UC Berkeley Law School, and he's a well -known Supreme Court

authority, but he certainly has leans left.

But that said, he's talking about the Dobbs decision that overruled Roe v.

Wade. This is at page 79 of his book, and he says,

"Simply put, at a time when our country is more politically polarized than at any

time since Reconstruction, the court, referring to the Supreme Court, has come down

solidly on one side of that divide, far to the right on it. This too contributes

to the crisis facing American government. Under these circumstances,

the American people cannot regard the court as a neutral umpire as John Roberts

tried to portray it at his confirmation hearings, or as having great legitimacy.

they rightly see it as just another part of the partisan divide and one that is

likely to remain very conservative for a long time to come. I think Dean

Chemerinsky's

notion that the judiciary is conservative is limited to the Supreme Court because I

believe from the defense perspective at least insurers and perhaps defendants in

personal injury cases particularly view America's courts,

state courts as liberal and likely to impose high damages.

In the end we get to is perception, and litigants want to perceive that they've

been treated fairly in their case. I believe most judges try to treat the litigants

fairly. However, there are some who put their finger on the scales, and there are

some that really push for resolutions,

And almost always in the civil context where the resolution is payment of money It's

pressure on the defense to pay money to the plaintiff and So I understand why

defendants May perceive they're not getting a fair shake. I understand why insurers

may believe that the deck is stacked against them. But the point I want to make

once and for all in this podcast is that it's important to know your judge and try

to get rid of the judges that you think cannot be fair because they are just so

ideologically predisposed that they're not going to change.

Their political leanings, how they were appointed, can give you a clue, but their

decisions are the best indicators. And if you can live with the judge,

even though they might lean away from the position you want to take in the case,

then your challenge as an advocate is to figure out How best to present your case

to the judge in a way that's going to Persuade the judge to want to find your way

This is very similar to how I suggested selecting a jury in the previous podcast on

jury selection I think we have some ability to do it in at the trial level.

And so I suggest that on day one of the case, when you find out your judge

assignment, you do that research, figure out whether you want to file a motion or

make a peremptory challenge, and from there on, start fashioning your case in a way

that you

Well, I'll help the judge see it the way you see it Well,

thank you for joining me on this episode of coverage counsel is in and until next

time This is Bob salander signing off