The Chinese Curse

The Chinese Curse

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There are four bankruptcy judges in my district. For each of four straight years, beginning next year, a judge's position will be up for grabs in our district.

For the last dozen years or so, bankruptcy practice in our district has been stable and predictable. For the next four years, things will be—well, they will be a little more interesting. Will the judge up for reappointment for that year reapply? If the judge does reapply, what will the circuit court's reaction be? Will the circuit solicit input from the bar? From the public? Will the circuit be circumspect about its decision-making process or will it publicly disclose its re-selection criteria? Will the circuit employ a laissez-faire attitude ("if it ain't broke, don't fix it"), or will the circuit feel compelled to take a hands-on, proactive approach? And what "measuring stick" will the circuit be using in making these evaluations? Intellectual ability? Judicial style? Political affiliation? Perceived inclinations toward creditors or debtors?

You have to wonder what effect all of this will have on judges. Will they become more deferential to their circuit judges? Will they tend to "shade" their decisions with a view to pleasing those judges? Will they pull their punches when it comes to enforcing standards of practice and behavior for lawyers, lest they trigger a negative letter to the circuit court from a disgruntled lawyer? What will they do when it comes to ruling on fee applications?

When the framers drafted the Constitution, it never occurred to them that there could ever be any kind of federal judge other than one appointed essentially for life, insulated from salary reduction. The notion was that judges ought to be able to make their decisions free from the influence that accompanies the lack of job security. Article III judges are insulated by their status from improper influences that might be exerted by Congress or the executive. They are also insulated from the pressures that might otherwise be brought to bear by other judges, lawyers or litigants. It is only natural that some will want to exercise influence over the outcome of a dispute in which they have an interest, whether that dispute involves a matter of national policy to be resolved by legislation (hence the popularity of lobbyists) or merely a private dispute to be resolved by litigation. Some may even be motivated to shade the decision-making of a judge in a particular case with a view to making precedent for hundreds of cases down the line. A judge who must rely on the good will/good opinion of others in order to retain his or her position is at least potentially vulnerable to such influences. So the framers solved the problem by providing that a federal judge need never worry that his or her job will ride on how that judge makes decisions.


It is inimical to the judicial role that judges might begin to shape their decision-making with an eye to job security.

We departed from that model sometime in the middle of this century. As a result, we have magistrate judges who carefully defer to their district judges (who must be reappointed every eight years), and bankruptcy judges (who must be reappointed every 14 years).

Much may depend on how the circuit courts handle the process. Indications from around the country are mixed. Some circuits, expressing confidence and trust in their long-serving bankruptcy judges, have gone out of their way to indicate their support for reappointment. Others, however, have handled the process by issuing mixed signals to their bankruptcy judges or treating the process of judicial reappointments on a par with clerk personnel decision-making. The difference shows, too. In some circuits, the sudden loss of support has increased the personal strain on judges, leaving them feeling at the mercy of any poison pen letter to the chief judge of the circuit.

As the end of your term approaches, you wonder, "How much do I like this job?" and "How much would it hurt me if I were told I was no longer wanted?" In a sense, these are really unfair questions. After all, I don't know of any lawyers, accountants, appraisers, auctioneers or turnaround professionals,who live and work in today's competitive environment, who can count on job security; plus, most have to please their clients and their colleagues to assure their positions. But judges are unique in that it is the nature of the position that it should be immune from such concerns. If bankruptcy judges were appointed either to a life term or to a single 14-year term, there would be no issue. It is the reappointment process that creates the opportunity for influence, political gamesmanship and the like.

Should bankruptcy judges be automatically reappointed? Perhaps. More to the point, they should be appointed pursuant to Article III of the Constitution. It is inimical to the judicial role that judges might begin to shape their decision-making with an eye to job security. This is not to say that judges should not be responsive to criticism of their judicial style or demeanor (or quality of decision-making, for that matter). Indeed, the most commonly heard criticism of the Article III judiciary is that at least some of them refuse to listen to constructive criticism, because they do not have to. Yet in the history of our nation, we have been willing to take a chance on a certain amount of arrogance in order to assure an independent judiciary—but not for the bankruptcy bench.

So nearly two-thirds of the bankruptcy bench over the next few years will be sweating out the reappointment process. Those who are older will mull over the benefits of retirement and senior status (except for the ageless Judge Duberstein, of course!). Younger judges will consider whether not being reappointed might actually be a blessing, freeing them up to pursue other careers such as teaching, consulting or law practice. Those putting children through college about this time will have an especially difficult choices.

Judicial staff such as secretaries and law clerks are also wondering what all of this will mean for them. Lawyers will also wonder what the future holds for them, though with less on the line; after all, lawyers learn to adapt very quickly. It's part of their survival-skill package.

Congress had the opportunity to make the bankruptcy bench an Article III bench back in 1978. In its 1997 report, the National Bankruptcy Review Commission recommended that bankruptcy judges be appointed pursuant to Article III. The Supreme Court has, on occasion, issued distant rumblings about whether bankruptcy judges should be appointed under Article III. Yet the system remains essentially as it was in 1978, modified by the 1984 legislation. The reappointment process over the next two or three years will tell us a lot about whether Congress made the right call. For those of us whose terms will expire during that time, we are living under that most venerable Chinese curse: we are living in interesting times.


Footnotes

Journal Date: 
Thursday, July 1, 1999