The Chinese Curse

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.

</p><p>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 <i>interesting</i>.

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 <i>laissez-faire</i> 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?

</p><p>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?

</p><p>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.

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<big><i><center>It is inimical to the judicial role that judges might begin to shape their decision-making with an eye to job security.</center></i></big>

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<p>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).

</p><p>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.

</p><p>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 <i>and</i> 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 <i>reappointment</i> process that creates the

opportunity for influence, political gamesmanship and the like.

</p><p>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.

</p><p>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.

</p><p>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.

</p><p>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.

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<h3>Footnotes</h3>