VOTE COUNTING by Jim Redwine

Gavel Gamut

By Jim Redwine

(Week of 7 March 2016)

VOTE COUNTING

Many court cases have political overtones even though many Americans think of the Judicial Branch as apolitical. A couple of recent United States Supreme Court cases may demonstrate the juxtaposed propositions.

Dow Chemical Company just settled a Supreme Court case for $835 million rather than take a chance on having to pay a one and one half billion-dollar class action judgment rendered against it in a lower federal court. Dow gave up its hope for a reversal of the lower court decision because Supreme Court Justice Antonin Scalia died.

Scalia was nominated by President Reagan, and, according to one expert, had been a consistent voice and vote against class action lawsuits. Dow did not wish to gamble half a billion dollars more in the face of four liberal versus four conservative justices where a tie vote would mean the lower court judgment would stand.

Or, if President Obama’s assumed to be liberal nominee would be confirmed, five liberals would probably vote to affirm the jury verdict obtained in a Kansas federal court trial. Or, if the Senate were to delay Obama’s nomination until next year so that the new president nominated a different candidate, and if the next president were to be Hillary Clinton or Bernie Sanders, a liberal justice would still be likely.

Political considerations pervaded Dow’s analysis. In fact, Dow issued the following statement:

“Growing political uncertainties due to recent events within the Supreme Court and increased likelihood for unfavorable outcomes for business involved in class action suits have changed Dow’s risk assessment of the situation.”

Of course, if one were to be of the persuasion that class actions to remedy such things as Dow’s conspiracy to fix prices are good for consumers, political pressure would be from the other side had a liberal justice died.

The absence of a ninth justice or, more appropriately, the contemplated replacement of Scalia, and the micro-political battle between liberals and conservatives in the Executive and Legislative branches are also highlighted by the pending Supreme Court review of the Texas case of Whole Women’s Health v. Hellerstedt. This case involves a state statue that is a not so thinly disguised attempt by conservatives in the Texas legislature to restrict abortion providers.

With four liberals and three and one-half conservatives, Justice Kennedy is seen as a swing vote, the Texas statute may withstand a constitutionality challenge by default, i.e., a four to four tie.

When one reads the vigorous and often vitriolic statements on both sides of this case, it would not be a surprise if the conclusion is reached this court case is pure politics in which the country expects an eight vote referendum, not an impartial judgment based on the law and the facts.

It is not the purpose of this column to simply re-state the obvious. Judges are often influenced by political considerations, personal prejudices and beliefs. The purpose is to concentrate on the current system where many judges who allow such factors to interfere with deciding cases on the law and the evidence are chosen by an undemocratic system and are virtually impossible to remove from office.

I suggest we address this problem initially by setting a maximum term of service for all judges at the same number of years required for military retirement, twenty years. Such a limit would require a reinterpretation of the provision in the U.S. Constitution and some state constitutions whereby judges serve, “during good behavior”. However, most American judges do not receive “lifetime” appointments.

This limit would be a maximum, not a minimum. That is, terms could be set at fewer years with the judges subject to re-election at more frequent intervals. Such a system would be my preference. However, an alternative would be that judges must meet certain qualifications to be initially able to be a judge, then serve one twenty year term during which they could only be removed for malfeasance.

Just as with military retirement, the judges would receive pay and benefits for life, but would never be able to serve as a judge again.

Judges are people. They have prejudices; limiting their terms will not eliminate the prejudices. What it would limit is how long the public would have to suffer injustice if the judge were unable to decide cases on the merits.