Politics and Commercial Litigation
There has been a lot of press recently concerning the President’s efforts to pressure judges into ruling favorably for the administration. It is scary because it undermines a major asset of the American legal system: its promise to be impartial and fair. But the cases that have received attention recently have concerned issues of government power.
This post is about my observations about the influence of politics on commercial litigation. I’d be naive to say that there is absolutely no influence, but the truth is that, so far, I have not seen a profound and direct connection between powerful litigants and judicial decisions that defy the law and expectations to yield results in their favor.
Why should you read this post about preparing to take politics and commercial litigation?
This may be as close as I get to a topical post.
You’ve read interviews I’ve done with litigators abroad who have noted political corruption in their home judiciaries.
You’re interested in a perspective that does not get a lot of press attention.
Image credit: https://en.wikipedia.org/wiki/Bribery#/media/File:10_-_hands_shaking_with_euro_bank_notes_inside_handshake_-_royalty_free,_without_copyright,_public_domain_photo_image_01.JPG
Many Judges Are Shielded From Many Kinds of Political Influence
American courts generally have four kinds of judges. In state court, some judges may be elected by the public, while others are appointed by governors. In federal court, some judges are selected by the President and are in office for life, while others are selected by other judges and have long terms.
Elected judges answer only to voters, and so other politicians cannot really fire them. But elected judges may consider the impact of their decisions on the electorate: will the decision be popular? Will it alienate a supporter and cause the supporter to back a challenger in the next election? These are legitimate concerns that anyone may have when appearing before an elected judge.
Still, I have not felt that any decision I have received from an elected judge was the product of their electoral calculations. Part of that may arise from the fact that the decisions I get are unlikely to get any press attention or affect any of their political supporters. So while I have disagreed with some of the decisions, or even been frustrated by them, I do not think politics was the problem.
As for judges who are appointed, it is rare that a judge loses office because of an unpopular decision. That is the primary reason why federal judges have lifetime tenure: to be safe to make unpopular decisions. And so I do not believe I have seen judges make bad decisions because of a fear that they will lose their jobs or get in trouble.
With that said, politics can make its way into court in a few ways. One is by the process of selecting who the judges are. Politicians pick the judges, as so political parties, and so people may only become judges if powerful interests are comfortable conferring power on them. While that may make judges business-friendly (or perhaps labor friendly), I have yet to see that impact clearly or personally in any individual case I have handled. Another way that politics can influence judges is by the promise of promotions: judges who want to be elevated to an appeals court may write political decisions so that politicians notice them and suggest their promotion. While I have read about this phenomenon, I have yet to see it myself in my cases.
Political Influence Makes its Biggest Impact in Cases of First Impression on Appeal or Involving the Chief Executive
Part of why I rarely see the influence of politics in my work is because of stare decisis. In general, courts follow the rules set forth by appeals courts. And so judges have limited opportunities to carry out the bidding of powerful interests if doing so required making new law. To do so may require a case with no existing precedent, which may be rare, or a case that proceeds to appeal, which may also be relatively rare for many commercial cases, which often settle.
Still, judges have many opportunities to affect a case without making new law, such as by deciding issues of fact or the day-to-day administration of a case that may confer serious advantages or disadvantages to one party. I have, however, not felt that judges I have seen have made decisions favorable to one side because of politics.
One reason I feel good about how the judiciary has handled disputes of a political nature is that many politically powerful parties have done poorly in court. I have seen very powerful people lose, including the current president multiple times.
Influence Outside the Judiciary on Lawyers and Litigants
While I do not see judges make politically biased decisions in commercial litigation, there are ways that powerful interests can influence litigation.
One way is through the ability to make frivolous arguments. When I advise litigants, I tell them to only make arguments and pursue suits that are likely to succeed. But a politically powerful person, or maybe just an exorbitantly wealthy person, can behave economically irrationally and pursue frivolous claims because the goal is not to make money or avoid losing money, but to win or make a point. Litigants with power may also drag out proceedings, pursuing multiple long appeals and frustrating judgment collection efforts, and even moving assets abroad or into trusts so they cannot be easily collected.
Another way some may influence litigation is by putting pressure on law firms not to represent certain clients. Because there are a lot of good lawyers out there, this may be difficult to do effectively, but the federal government has recently started taking actions against law firms that have taken adverse positions to President Trump, and that may cause a chilling effect on the decision of some lawyers to represent clients adverse to the politically powerful. This scares me because there may not be an easy way to protect lawyers from the economic and legal pressure to avoid fighting the government or risk bending to the government’s demands.