When I was a law student, I bought a used car at an auction. It had been repossessed by a bank, but the paper work had been fouled up, and after I paid for it, the auction company couldn’t deliver clear title and I couldn’t register and use the car. So I did what any self respecting law student would do. I sued the auction company under California’s new laws regulating auctions.
The case was heard by an old, traditional, Republican judge. He threw the case out after delivering a lecture to me about how the Legislature had no business interfering in the auction business by regulating it. Trying to force auctioneers to run honest businesses was contrary to history and probably nature and certainly interfered with their rights to maximize their profits, he said. He had empathy for the auction industry and its “need” to use fraud to make money.
I appealed and the appellate court reversed the judge. The appellate judges didn’t think that Republican empathy for one industry’s desire to conduct business fraudulently was sufficient to overturn the Legislature’s decision to try to protect consumers.
In popular culture, we have a tradition of honoring judges who show empathy to the people drawn into their courts. Consider Harry Stone of “Night Court,” Ray Walston’s Henry Bone on “Picket Fences,” and Fred Gwynne’s Chamberlain Haller, making a real attorney out of Joe Pesci in “My Cousin Vinnie.” We expect our judges to be wise and strict but also compassionate and flexible.
The tradition isn’t merely a Hollywood fiction. Senator Jeff Sessions was once nominated to be a judge. He expressed his own brand of empathy tempered by toughness when he said that although he liked the Ku Klux Klan, he turned against any Klansman who smoked marijuana. For him, nightriding, lynching, and church bombings deserved “understanding,” but marijuana use crossed an intolerable line.
When we hear people anguishing about whether judges should have empathy, we need to get beyond the labels and look at what constitutes good judging behavior in real world cases.
This spring, the U.S. Supreme Court ruled that a state court judge can’t rule on a case if he’s received bribes from one of the parties in the case. This might sound like pretty simple logic. Any decent Christian, for example, might remember Exodus 23:6-8:
You shall not pervert the justice due to your poor in his suit. Keep far from a false charge, and do not slay the innocent and righteous, for I will not acquit the wicked. And you shall take no bribe, for a bribe blinds the officials, and subverts the cause of those who are in the right.
So it may come as a surprise to learn that Justices Roberts, Scalia, Thomas, and Alito all dissented from the majority opinion. All four of these Republican judges said that they thought bribery was not a reason to disqualify the judge from deciding on a case involving the person who paid the bribe.
The case involved a judge on the Supreme Court of the State of West Virginia. The judge was a new judge, elected to the Supreme Court. West Virginia has a system of electing judges instead of appointing them and making them go through confirmation hearings like Sonia Sotomayor had to go through. In West Virginia, no one gets to force a candidate for a judicial office to sit in a public hearing room and answer hard questions.
The new judge had been elected in a campaign in which one man poured $3 million into ads for the candidate. There were only about 300,000 votes cast in the election, so the man paid about $10 per vote.
Why did the man pay $3 million to support a judicial candidate? The man’s company had lost a $50 million jury verdict in a civil lawsuit with another company, and the case was on appeal to the West Virginia Supreme Court. The man spent $3 million to save $50 million. As soon as his candidate got elected, he became the deciding vote to reverse the $50 million jury verdict. The man spent $3 million not just to buy a vote on the West Virginia Supreme Court, but also to buy a judge who would overturn the decision of a jury.
And four Republican judges on the U.S. Supreme Court said that this should be OK. Bribing a judge. Reversing a jury’s verdict. Don’t these things sound like judicial activism? Why would four Republicans support such things (aside from the $$$$)?
If you read the Court’s decision, and the dissenting opinions written by Roberts and Scalia, you get to see a fascinating contrast with the Republican view of the Sotomayor hearings. Remember that the Senate Republicans claim that they don’t want any “feelings” or “experience” or “interpretation”, but just a clean, objective application of the law.
The majority opinion in the bribery case said that we need objective standards against bribery. We need an objective application of a rule that you can’t bribe judges. Chief Justice Roberts disagreed. He said you can’t apply a clear objective rule to such cases.
Antonin Scalia agreed with Roberts. Scalia said that people should not look to the Courts to right every wrong. He wrote “Divinely inspired text may contain the answers to all earthly questions, but the Due Process Clause most assuredly does not…some wrongs and imperfections have been called nonjusticiable.” Scalia, who pretends to be a devout Christian, rejected the Commandment of Exodus 23:6-8. And he rejected the idea that the Due Process clause in the Constitution gives anyone a right to legal process free from bribery. The Case was Caperton v. A.T. Massey Coal Co. decided June 8, 2009. You can read it from the Supreme Court’s website.
Most of us will never have a case at the Supreme Court. But many of us will experience “justice” in the state Courts. During the week of July 20, I was in court in Los Angeles and watched a judge conduct an argument between two attorneys. One attorney kept citing pages of the court reporter’s transcript of what a witness had said during testimony. The other attorney kept saying “I don’t remember it that way. I thought the witness said…” That attorney didn’t cite any pages from the official court reporter’s transcript.
The attorney citing the transcript of what the witness actually said represented a consumer. The other attorney represented a corporation. The testimony in the transcript made it impossible for the judge to rule for the corporation. But finally, the judge said he agreed with the corporate attorney. He didn’t disagree that the transcript said what it said. He just said “that’s not how I remember the witness’s testimony.” He simply rejected the official transcript because it didn’t permit the result that he wanted to achieve.
That judge — a wealthy, white, Republican, political appointee — has empathy for the rich and the powerful. He understands that they need protection from disgusting, poor consumers. Roberts, Scalia, Thomas, and Alito have similar empathy. They reject objective tests for bribery just as the California judge rejected the court reporter’s official transcript. They span the range from local trial judge to the highest “justices” in the nation. And they are not unique.
Around the nation, governors like Haley Barbour (Mississippi), Tim Pawlenty (Minnesota), and Sarah Palin (Alaska) are appointing party loyalists to Courts, just as our own Ahhhnoooold is, here in California. The mind just boggles, trying to imagine the sort of judges being appointed by South Carolina’s Mark Sanford. How will he, like Scalia, get around all those Commandments to which he publicly pledges loyalty?
And around the nation, consumers, like the victim of the California judge who rejected the court reporter’s transcript in order to rule for a corporate litigant, now have to worry that almost half of the judges on our Supreme Court think that bribing judges is O.K.
Seen in this context, confirming the Sotomayor nomination gains a new urgency.