Open Letter to Senate Judiciary

An Open Letter to Senate Judiciary Committee on Supreme Court Candidate Justice Sonya Sotomayor:

Watching the Senate Judiciary Confirmation Hearings for Honorable Sotomayor,
we gather that “compassion” is now a dirty word, along with civil rights, freedom of speech, and “in the interests of justice”. Judge Sotomayor’s instinctive response was to attempt to justify her statement. Her advisors might have taken a step back to see that she was right before having her backpedal on this issue.

The Law was designed to be “compassionate” in order to competently and effectively protect the rights of “We The People”. Being compassionate is not inconsistent with adhering to the Law or the Rule of Law, nor is it a sign of weakness or inability to
balance the scales, it is essentially necessary in order to execute the duties of a judge. Judges who lack empathy or compassion are usually narcissistic power players who have no problem doling out judicial favors to those who can most advance their careers and to whom they will become indebted to at some future point. This shameful trend is far more pervasive than most Americans are aware of. It’s no longer enough to put forth
a solid case with the evidence and law on your side, now you have to cultivate favor
with “deal-making” judges who feel they are entitled by edict to dispose of anything that does not conform to their personal values.

We need to really examine the qualities that make a judicial candidate a future JUDGE in the sense that our founding fathers envisioned, and how these qualities comport with the duties of a judge. Judges are impartial triers of fact, enforcers of the Law. Where there are gaps in the laws, or unique circumstances, they must also be fair interpreters. This endows them with a great deal of power, power that has progressively been systematically abused because we have been appointing the wrong judges, using the wrong vetting techniques and criteria, and not instituting effective judicial monitoring systems.

Today judges feel contempt for the litigants that they serve and for the jury system. They see juries as intellectually inferior to them and therefore unable to ascertain the truth. I respectfully disagree. Juries are the only bona fide mechanism we have in place today
for seeking out the truth and administering justice, especially on the “liability” side of the equation. While there have historically been instances of juries who have “gone off the ranch” on damages, especially in personal injury cases, most of the time juries get it right. Twelve men and women who have never met each other meet in a room and debate the facts and perform a “differential diagnosis” of the Truth. There is no substitute for that. Judges are, by definition, individuals, and they often have very strong biases and opinions which they frequently impose on the legal process. Judges will throw out cases that are bona fide if the outcome is inconsistent with their beliefs, or “sanction” a litigant who they don’t “like”. The latter is almost always related to a bias that the judge possesses, almost always undisclosed, that affects their “interpretation” of the facts. And as long as judges do not even have to publish their Decisions, or explain their assumptions, these abuses will continue.

This is a serious inherent flaw in the Judicial System. The unfettered power of judges. Juries have a built in “policeman” because there is always someone on a jury who will “out” any scheme or pursue that loose end fact that just troubles them. But judges are very easily manipulated, especially by skilled trial attorneys, into believing “facts” that don’t exist, and interpretations of the law that are politically correct or consistent with their ingoing bias.

We need Judicial Reform desperately in this country. It may come as a shock to many Americans but there are “transformational” economies that have recreated the concept of Justice with increased transparency, citizen outreach, clear separation of judiciary and legislature (as it was intended in this country), and innovative mechanisms for nominating and vetting judges.

We have in America today the rise of the “Activist-Elitist” judge. The judge who feels superior to the electoral they serve. Because they see themselves as inherently superior (wise jurists never project these insecure predicates), they use their scholarship to advance their political agendas and their own careers. I personally have seen judges re-write federal anti-discrimination laws “from the bench”, disregard facts and evidence which did not conform to their ingoing bias, “fix” cases using attorneys as arms length agents, and decide what cases will get tried and which won’t. The latter is not based on the legal standard for dismissal at the summary judgment level, where “in the light most favorable to the non moving party”, the MTD’s must be examined, but rather based on some intuitive “feeling” that the judge has. Again, the latter is almost always a “reflexive” refection of the judge’s personal opinions. Judges today feel that they can toss out a bona fide jury verdict simply because they don’t like the outcome, want to change the law, advance their career, or do a colleague a favor (or all of this). Most people do not realize that our justice system today is less like “Law and Order” and more like “Michael Clayton”. Tossing out jury verdicts should be a rare event, by definition.
And if a verdict is vacated, the law almost always requires remand for retrial, not “I am King/Queen, You Will Obey Me” rescissions. “Settlements” should only be deployed when there are no triable issues of fact, not because the employer got caught in the act and might be hit with a large damages award. Judges should not be concerned with “helping” their peers out of jams. They should be reporting their misconduct.

To consider how far a field the concept of justice has diverged, consider the fact that
Appellate Judges are tossing out jury verdicts at an alarming rate. The standard for reversing jury verdicts in this country and in New York State is “the jury acted irrationally” and “no rationale or reasonable mind could arrive at the same conclusion”, or that the judge made an error of law. That’s an extremely high hurdle, as it should be. If every appellate judge could abuse their power to re-write the laws on the books to suit their whims, there would be complete chaos and the purpose of having a Judicial branch defeated. Yet this is exactly what is going on behind the scenes and under the nose of Lady Justice. It is possible because there is no effective judicial review mechanism (the Commission on Judicial Conduct has completely failed to effect their mission: To ensure that judges play by the Rules and enforce the laws, not re-write them or dole out favors). When judges abuse their authority, they act to undermine the very values that our country was founded upon. The consequence of this failure is that our nation’s Laws and Values are being progressively eroded.
The past has finally caught up with us: all the judges that were appointed by prior administrations who did not do the “due diligence” necessary to vett judges, are now flaunting their unrestrained power and being rewarded for it. Judges will reverse jury verdicts, re-write laws, act demonstratively unrestrained and intemperate, bully litigants,
force settlements, and do so not only with impunity but actually be promoted for the same illegal behavior.

There is no better example of this trend of abuse of judicial power and the devastating consequences that the appointment of Judge Jonathon Lippman as Chief Judge for the New York Court of Appeals by Governor Patterson. Judge Lippman is not just an “activist” judge who is more than willing to do favors for his “clients” (the corporate trial attorneys, most frequently), he is more than willing to step into the role of Legislator and re-write our laws. In the biggest perceived disability case to come before the Court in decades, Jordan v. Bates (December 27, 2007), he intentionally re-defined the legal standard for proving “pretext” in discrimination cases to make it easier for employers to discriminate. The dire consequence is that discrimination rose 15% in 2008 (per EEOC).
Because of Judge Lippman and the First Department, now all an employer has to do upon receiving a complaint of discrimination, is to simply assert, but not even prove, a “legitimate reason” and be completely exculpated. This flawed model has been rejected by almost every state outside New York, who have adopted the “real reason” model for proving discrimination.(MI, CT, CA et al). The latter requires that the Complainant be afforded the opportunity to prove that the employer was motivated by discrimination when they effected the adverse employment action upon the person in the protected class. Lippman feels that if an employer says “We fired the cripple because she had blue eyes” and the complainant does indeed have blue eyes, that it’s “game over”. This is the “scholar” that is the thought leader for our state.

What we really need to address, and very soon, are the qualities that made an effective judge who enforces the laws equitably, competently and impartially. By Law, the judge must be “an impartial trier of fact”. He or she is required to recuse themselves sua sponte if they cannot fulfill this critical role. Yet time and again, judges as high as the Second Circuit, act to impose their biases upon litigants. Most of the time, they either don’t have the necessary facts to render the conclusions they find, or they simply disregard those that do not fit their values. They act out of contempt for litigants, whose “everyday problems” that President Obama so eloquently in scripted into the screening process, are of “no moment” to them. These judges should remind themselves who put them in office. It wasn’t the corporate attorneys and lobbyists who got them nominated in the first place, it was We The People. That is who they serve.

The Republican party has tried to portray Judge Sotomayor as the lightning rod for what is wrong with our Judiciary–a judge who might actually consider the perspective of a litigant and not their own, which is the definition of compassion. Not only is this position inherently illogical and inconsistent with the intent of our legal system, to administer justice, it is the more conservative jurists who are currently dominating the bench and imposing their values upon cases. They are just afraid that someone might come along with different values and do what they have been doing for decades. Inject personal biases into case interpretations.

What we need is a bi-partisan Reform of our Judicial system. Both sides need to remember why we have two separate branches of government. One to Legislate or create laws, and a Judiciary to enforce the same. We don’t need don’t need virtual legislators hidden inside the Judiciary. Nonetheless, because the judiciary is based on an arcane and complex system of rules, the latter of which often impede swift execution of justice, and the Law is so complex and intellectual, we must have scholars on the bench.
One cannot adjudicate an SEC case if one is not capable of understanding securities law. One cannot decide complex contracts if one does not appreciate the nuances of Tort Law. One cannot enforce and uphold, and hopefully strengthen, our nation’s anti discrimination laws if they do not understand the Supreme Court’s interpretations of the same. One would think that with scholarship would come wisdom AND compassion, impartiality AND fairness. Yet the typical judge of today is more interested in judicial compensation and personal advancement, than they are in justice. And because there is no effective monitoring mechanism, not only have we evidenced extensive abuse of judicial power, we have seen a complete failure to uphold and enforce the most important federal and state Laws.

In fairness to those rare ethical jurists who really do seek the Truth and to enforce the Law, one of the problems is that the Supreme Court has failed to clearly define, in non obtuse language, certain areas of the Law. Take Discrimination for example. The Supreme Court has issued a number of rulings beginning with McDonnell Douglas) to provide State Courts with guidance as to how to interpret federal anti discrimination laws. Unfortunately, it issued subsequent decisions like St Mary’s v. Hicks (1993), where there was too much room for interpretation, especially in critical areas like the burden of proof, the process for proving discrimination (tripartite), and the social models that help interpretation of the same (how discrimination manifests itself in the workplace).
State Courts have struggled to interpret discrimination law for decades. Their failure was in forgetting about the intent of these laws: to enforce the Anti Discrimination statutes like the ADA and Title VII. The failure of the Supreme Court to properly and comprehensively define the standards has led to bad local law. A classic example would be Stephenson v. Hotel Employees, 6 NY3d, 265, 270 (2006), where the Third Department held that after establishing a “prima facie” case of discrimination, and allowing the employer to rebut it with a “legitimate reason” (that it does not have to prove), that the plaintiff MUST prove that the “legitimate reason” was false, and if not, even with an abundance of evidence of discriminatory intent by the employer, the plaintiff’s case fails.
This is madness. The case where Judge Lippman led the panel (Jordan v. Bates 118785-99) shows how lack of clear federal law enabled an over-reaching appellate state court to completely re-define the standard for proving discrimination in a way that is completely inconsistent with the intent of the law, to prevent discrimination and to punish violators, and with state of the art social models that support how employers discriminate and victims respond. The Law is supposed to be Rational.

HOWEVER, when human bias is interjected into interpretation the results are often irrational. The “blue eyes” example demonstrates just how irrational the First Department decision to support Stephenson standard was. Now all an employer has to do in New York State to defeat a claim of discrimination is to simply come up with a feasible explanation which the Plaintiff is expected to prove (even when the employer controls the evidence). We didn’t fire her because she was a cripple, while we were hiring non disabled replacements, we fired her because of a “financial crisis”. Thus, (and all you logicians will have a field day with this), any employer who has “financial problems” cannot possibly be guilty of discrimination. And the fact that if there really was a “financial crisis”, it would follow that the Defendant would not be hiring new non disabled replacements. With this decision the First Department has created a gigantic loophole for errant employers, many of whom paper their websites with Codes of Conduct that expressly preclude discrimination “ of any kind”.

There is no greater priority for our country today, after national security and the economy, than fixing our broken judicial system. We need a completely new model that will be effective in a very challenging future. We need to raise not lower our standards for judicial candidates and ensure that “integrity”, “respect for the Rule of Law, the Rules of Evidence”, “respect for First Amendment rights”, “impartiality”, “wisdom”, “leadership by persuasion not coercion”, “insight”, “analytical”, “restraint”, and yes, “compassion”. Compassion for persons in protected classes who are being treated differently from their peers, Compassion for victims of violent crimes and domestic abuse. Compassion for stock holders who have been victimized by greedy opportunists. Compassion for corporations whose intellectual property has been unfairly infringed upon, or who encounter unfair trade practices.

Justice Sotomayor, do not let them tell you that “compassion” is a dirty word. Tell them that they just aren’t using it as the Constitution intended. Tell them that our country needs to “come up to speed” with modern justice models, that invoke more compassionate understandings of human conflict to reach civilized, fair, intelligent
resolutions.

Kathryn Grace Jordan
President
End Discrimination Now