Our Courts Are In Ruins (And Justice Is For Sale To Highest Bidder)
For the purported most powerful and greatest nation on earth, we should feel shamed by the state of our judicial system. What is happening with our Courts is directly related to our self-absorbed and broken government. Riddle me this: how does a democracy function if two-thirds of its legislative-executive-judicial trifecta fails to function?
As related to our Courts, we have a three-pronged problem. (1) Our Senate cannot confirm even pro-forma judicial nominees anymore; it has become that broken and that partisan. I won’t even mention who gets the blame on this (his name starts with Harry and ends with Reid). He knows it. We know it. Anyone halfway paying attention knows it. Enough with the weepy speeches on the Senate floor, Harry, we don’t want to hear it. It. Is. On. You. (2) Our Courts are massively understaffed and underfunded; because of this great lack of staff and funding, we have judges, administrators and clerks who are simply ill-equipped and resentful, which manifests in a terrible way in rulings, in the time taken to reach some measure of justice, and an overall dreadful Court experience. And, (3) For all of the above reasons, we have seen an almost bubonic-level outbreak in private arbitration, which is almost never beneficial to the “little guy” and is cost-prohibitive.
This week, as you’ve no doubt seen or heard, Senate Republicans again blocked the nomination of an extraordinarily qualified candidate – Caitlin J. Halligan, a well-liked and principled attorney from New York who served as that state’s Solicitor General from 2001-2007. For Ms. Halligan, this is her second go-round with the Senate in less than two years as President Obama’s nominee to fill one of the vacancies in the U.S. Court of Appeals, D.C. Circuit. When the President first nominated her, in 2011, Halligan was met with a GOP filibuster. And here we are again. This is a woman who, out of law school, clerked for the very Court to which she’s been nominated; and then for Supreme Court Justice Stephen Breyer. She’s taught writing and American history at schools in China and has done great work for non-profits. So what’s the problem? Oh…..right. She’s considered to be an “activist judge” because she’s a Democrat and has been critical of the NRA.
For those unaware, the D.C. Circuit to which Ms. Halligan has been renominated is considered to be the most influential and important “lower” Court in the land (sometimes referred to as a “mini-Supreme Court”). It handles high-profile appeals, “including executive authority to fight terrorism and broader congressional power”. Probably things like drones. Of the only seventeen seats on this bench, four are now vacant and waiting to be filled and have been for some time.
President Obama is the only President in recent history never to have successfully placed a nominee on the D.C. Circuit. This is just a small slice of what’s happening with Obama’s nominees. The number of vacancies otherwise for the Federal bench has hovered at 90 – ninety – for four plus years.
What’s happening inside the Courts? Anyone trying to practice or work in the legal field in any capacity over these last years can attest: months and months and months to get what used to be routine hearing dates; years to trial (no more “fast track”); overburdened (and extremely grumpy) judges and clerks; furloughs; massive shortage of administrators; “dark” days; parties now bearing the responsibility of arranging and paying for their own court reporters; the physical infrastructure of our Court buildings in tatters….
Another of the unintended consequences of the totality of this mess has been a pox on both your houses mentality exhibited by our jurists. They are simply baked. Cooked. Fried. The burden facing our judges, magistrates, commissioners, administrators and clerks has resulted in the denial of due process or even basic access to justice; Lady Justice, whose scales are becoming increasingly unbalanced.
Then there’s the grotesque explosion in the use of compulsory private arbitration (JAMS being the worst offender) – often conducted by retired judges who’ve left the bench in order to rake in buckets of money for the privilege of dispensing justice to the tune of $800 or more per hour. I can tell you that, based on personal recent experience, especially if you have a Corporate Titan vs. Average Joe, the private arbitration system is so inherently corrupt that there is virtually no way for a grievously wronged individual to have the corporation held responsible for an equitable resolution in this setting, even when the arbitration is “employer-promulgated”. These disputes are borne of inherently twisted “take it or leave it” arbitration clauses that most individuals just sign without much thought and with no choice. In particular, with the state of our economy over the last several years, job-seekers desperate for employment have, without question, put their John Hancock to these onerous provisions in their “routine” pre-employment paperwork. But there is nothing routine about an arbitration provision; they are lopsided and corrupt to their core. A “typical” clause goes a little something like this:
WHEREAS Employer and Employee want to provide for the expeditious and cost-effective resolution of any and all disputes of any kind and/or nature that may now or in the past or in the future exist between them;
WHEREAS Employer and Employee want to use an expeditious cost-effective means to avoid the delays and uncertainties of resolving disputes through the courts;
WHEREAS Employer and Employee want to enter into an agreement for final and binding resolution of any disputes through the arbitration process.
Most importantly, these agreements go on to say that employee and employer bear their own attorney fees and, in “commercial” cases, no matter how unequal the bargaining power, also the costs of arbitration. Additionally, the selection of the private arbitration provider is at the sole discretion of the employer. So you can imagine the fairness of this all. You have a legitimate dispute with your employer. You are denied your day in Court; you are bound to private arbitration with no judicial oversight or appeal rights, often for claims not yet known (see above, “disputes of any kind and/or nature that may now or in the past or in the future exist“). Your employer selects the provider that will be conducting the arbitration, and that company and your employer have 9 times out of 10 done large quantities of repeat business together. Fair, right?
For these reasons, most employees simply “walk away” from disputes with their employers. And it’s not just with employment. These adhesive arbitration provisions are found in our car and apartment leases, insurance contracts, loans, credit card agreements, and just about everything in between. We have a corrupt, private process peddling justice to the highest bidder. Think about this for a moment. There exists a parallel track of private justice lacking any oversight, with no access to media or press, no appeals, etc. Corporations. Winning. Again.
The regular private citizen cannot afford to arbitrate. Further, an independent, accessible judiciary is the hallmark of a democracy. It is not intended to be a tool for a handful of wealthy citizens.
I encourage our readers to educate themselves further on these so-called “pre-dispute” arbitration provisions and implore that you not willy-nilly enter into arbitration agreements with prospective employers, or, routine consumer contracts, before first conducting your own research into what exactly the particular provision you are being asked to sign means and to what you will be bound; or, if you can at all afford it, pay an attorney for an hour’s time to look at it and negotiate some of the language with human resources or the company’s counsel.
If you’d like to read more about the cost of private arbitration and why these clauses are so damaging, Senator Al Franken (D-MN) has done great work and has for nearly two years been fighting for the Arbitration Fairness Act.
All of the above are not-so-round-about ways of saying that our judicial system is not functioning – it is in fact failing, and we need to stop the death-by-a-thousand-cuts to the system and restore funding for jurists and administrators and infrastructure spending to our Courts. Much in the same way that we need more firefighters, police and teachers. Not less.
And for goodness sake, we need to confirm the President’s judicial nominees. At the very least we must demand up or down votes on them.
If you’d like to write to Majority Leader Reid to voice your “concern” over judicial nominees in the Senate, you may do so by email, or, by calling (202) 224-3542.
[featured image: flickr.com]
[internal image credit: maddowblog]