Because they are constrained by the rule of law, conservative judges are invariably going to be better than Leftist social justice activists on the bench.
The ostensible starting point for this rumination is a post I read at Power Line about Administrative Law Judges, which I’ll get to in a little while. For me, the real starting point was a few cases on which I worked in the early 1990s, which exposed me to the worst that Leftist judges in San Francisco had to offer and that, although I didn’t realize it then, started me on the road to being a conservative.
I’ve changed all of the names, or excluded names altogether, but these retellings are as accurate as I can make them. I’ll start with the biggest case on which I worked, for it was the case that had the most profound impact on my thinking.
Once upon a time, there was a little old lady named Mrs. Murphy. When this story starts, her husband and son had both died, although she continued living in the family home. She had never wanted to be alone, so even before she became frail, Mrs. Murphy hired a live-in housekeeper named Ilene Corbeil.
Mrs. Murphy kept in touch with her husband’s niece, Laura O’Toole, although it was not a close relationship. It was Ilene who facilitated every aspect of Mrs. Murphy’s life by cooking and cleaning for her, driving her everywhere, helping her with her personal grooming, etc.
The house in which Mrs. Murphy and Ilene lived was not a fancy house, but it was a San Francisco house. That means that, while it might have sold for around $150,000 were it in a similarly situated working- to middle-class neighborhood in Wichita, in San Francisco, the house was worth about $800,000 or $900,000 dollars.
Laura, looking at that house, and looking at the close relationship that had developed between Mrs. Murphy and Ilene during their 16 years living together, decided that she needed to take action to protect what she assumed would be her inheritance. After her delicate hints that Mrs. Murphy would do better in an old age home failed, Laura escalated things: she approached a city agency tasked with looking after old people, and told the agency that she was worried that Ilene was taking advantage of Mrs. Murphy.
The agency immediately sent a couple of people over to Mrs. Murphy’s house to check things out. After their inspection, they were satisfied that Mrs. Murphy was mentally competent, that Ilene was taking good care of her, and that Mrs. Murphy was not being abused or unduly influenced in any way.
Mrs. Murphy, although grateful that her comfortable lifestyle in her long-time home would not be interrupted, was livid. She also felt weak and unable to stand up to Laura on her own. It did not occur to her to turn to Ilene for help. Mrs. Murphy came from a class and generation that said you needed a man for these things.
Rooting through her husband’s business card collection, she came upon one from Peter Vasilyev, who had shown up once to try sell the Murphys a home alarm system. I don’t know whether Peter actually sold them an alarm system, but he’d made an impression on Mrs. Murphy. I can understand why. Peter had a rich, warm voice with a personality to match. Although born in Russia (and he still had a faint accent to prove it), he was a former police officer, so he conveyed an aura of strength and security. Mrs. Murphy therefore called him to help her out.
When Peter showed up, Mrs. Murphy introduced him to Ilene, for the two had never met. Then, Mrs. Murphy got down to business. She had two requests. First, she wanted him to help her find a lawyer so that she could rewrite her will. Second, she wanted him to help her write a letter to Laura telling Laura to go away and stay away.
Peter did help Mrs. Murphy write the letter and it was extremely blunt. There was no nice little Irish Catholic lady tact in this letter. The language was all Peter’s. It boiled down to “you are a horrible human being and I don’t ever want to see you again.” Given that Laura had tried to kick Mrs. Murphy out her home, one can understand the sentiments.
Peter also told Mrs. Murphy that he knew just the lawyer to help, someone whom he’d met in a Russian Orthodox Church. To speed things, Peter suggested that Mrs. Murphy let him record her talking about her estate and her estate plans. She agreed.
I listened to that recording many times. Mrs. Murphy, in the thin, scratchy voice of a very old lady, talked about her beloved husband, the son who predeceased her, and how happy she was to have Ilene in her life, and how she wanted Ilene to inherit her estate. She accurately described the extent of her estate (house, car, small bank account), although she had totally missed out on the insane rise in housing prices.
She offered that the house she would leave Ilene was worth about $150,000, which she felt was ample recompense for Ilene’s 16 years of affectionate care. As it happens, the law in California holds (or, at least in the early 1990s, held) that, when writing a will, you didn’t need to know the monetary value of your estate; you needed only to know what was in your estate. Mrs. Murphy easily met that metric.
Armed with the tape recording, Peter went to Vladimir Malinov, a local attorney. Vlad was a fascinating man. His parents came from Russian nobility and, after suffering greatly under the Bolsheviks, managed to escape from Russia in the early 20s, eventually settling in San Francisco, were Vlad was born. Although he grew up in the City, Vlad spent the first few years of his life in an entirely Russian community, so his English always had a faint Russian tinge to it. He was a bright kid, attending first Lowell (an academic high school) and then Cal, before going off to law school. He also joined the Army Reserve, eventually retiring as a Lieutenant Colonel. I spent many happy hours talking with him and he was the first person to explain to me that every adult American male is a member of America’s militia, which completely shook my anti-gun perspective on the Second Amendment.
Using the tape recording, Vlad wrote up a will for Mrs. Murphy. He then contacted Peter, who brought Mrs. Murphy to Vlad’s office. With Peter waiting in the antechamber, Vlad went over the will’s provisions with Mrs. Murphy. She expressed herself satisfied so, in the presence of two witnesses, Mrs. Murphy signed the will. She went on to live another year or two after that.
When Mrs. Murphy died, Ilene notified Vlad and he submitted the will to probate. That should have been the end of it, but it was not.
Laura had a daughter, Carol Ann O’Toole. Carol Ann worked for, and had a personal relationship with, Ronald Brown, a singularly horrible man who happened to be an attorney. I say “singularly horrible” because I dealt with that man for three years and don’t have one good thing to say about him. He was mean as a rabid rat, and while he never lied, he also never told the truth. His legal briefs were masterpieces of obfuscation, misdirection, and the kind of libelous statements that would have been actionable had they shown up in any context other than litigation.
With Brown acting as her attorney, Carol Ann filed a will contest case in which she accused Ilene, Peter, and Vlad of using every form of undue influence known to man to force a befuddled little old lady to abandon her loving family and, instead, leave her estate to a scheming housekeeper. Ilene and Peter, of course, were unhappy to be named in the suit. With Vlad it went to a different level. It wasn’t just that his professionalism had been impugned, something that affected his livelihood. It was also that he was a truly old-fashioned gentlemen and his honor had been attacked. This was simply shattering to him and I swear that he aged 15 years during the 3 years that case was in play.
I need to digress here and explain for the non-lawyers how cases work, at least here in California. Most people, when they think of “litigation,” think of Perry Mason or L.A. Law.. In both those shows, the client comes in to a law office, the lawyer gets the story, he or she does some exciting investigation, there are explosive meetings with opposing counsel, the case goes to trial, there’s an exciting courtroom scene, and (usually) the TV stars win. That’s not how real cases work.
What really happens is lots and lots of paper, all rejoicing under the name of “motions.” As soon as I see a complaint, I start thinking about the two major types of motions I can file. The first are called demurrers, which challenge the complaint on its face. These argue that the complaint, as written, reveals flaws that cannot be corrected, requiring that the court dismiss the whole complaint or individual causes of action within the complaint. Motions of this type might include the argument that the plaintiff has no legal right to assert a claim (lack of standing) or that a cause of action as written reveals that it is impossible for the complainant to meet a necessary factual or legal standard.
The second major types of motions are summary judgment motions, which function like paper versions of trials. These put all the available evidence before the judge in written form, and then argue that, based upon facts that cannot be disputed, the moving party should win the case (or the other side should lose it, which isn’t always the same thing). Summary judgment motions aren’t as flexible as a trial, because the judge has to conclude that there are “undisputed material facts” but they can get you places, either resulting in the entire suit being dismissed or, again, specific claims getting dismissed.
And then there’s that whole litigation subset known as discovery. Each party is entitled to learn as many facts about the case as possible through requests for documents and other tangible things; written questions requiring written answers; and depositions, which are live testimony under oath. In my experience, discovery generates the most paper work. In addition to mountains of questions and answers, most lawyers seeking discovery get too intrusive in their questioning and most lawyers responding to discovery get too hypersensitive about giving responses. And so, off to court you go with all sorts of discovery motions.
Today, California law requires that cases go to trial within a year of filing, if they haven’t already been settled or kicked out. It’s amazing, though, how much motion practice lawyers can cram into a year. Back when I worked on the Mrs. Murphy will contest, though, there was no time limit on getting a case to trial. As I mentioned above, this case occupied three years of my life. The motions were endless. This is a story about two of those motions.
One of the first initiatives we did in the Murphy will contest was to file a demurrer pointing out that Carol Ann had no right to bring the suit. As a great-niece, her relationship to Mrs. Murphy was too distant for the law to give her “standing.” I wrote a very careful motion carefully documenting the way in which the California legislature, over the years, had limited, and then limited again, those people who could complain about a will that didn’t work in their favor. Because Carol Ann would receive nothing should her suit be successful (her mother was the actual surviving heir should the will pass by intestate succession or by a reinstatement of an earlier will), she was far, far outside of the category of people California law allowed to bring will contests.
So, Lawyer Brown and I show up in the Law & Motion department before a judge who subsequently got appointed to the California appellate court, as serious an example as I’ve ever seen of a judge failing upwards. The judge had read the papers, which consisted of my explaining the law and Brown hurling insults, citing utterly irrelevant case authority and facts, and generally doing everything he could to obscure a key reality: I was absolutely, categorically, 100% correct on this one.
After oral argument, the judge rendered his decision. I can’t recall the precise words, but this was the gist: “Defendants are correct on the law, but I think there’s something there, so I’m not dismissing the suit.” In other words, despite agreeing that the law completely barred Carol Ann from appearing in court, the judge kept the case alive because he didn’t like that a little old lady left her house to her long-time housekeeper.
As the eventual trial revealed, the judge was completely wrong about the facts, but even if he hadn’t been, that still didn’t give him the right to ignore the law based upon his gut feelings — but that’s what Leftist judges do. Who needs law when your belly button is telling you things?
So the case ground on, moving into the discovery phase, which was a complete nightmare because of Brown’s tenuous relationship with truth, law, and decency. I need to take another detour here so that I can speak slightingly of another person at the court, this time a “discovery commissioner,” aka a lawyer who works as a judge only on discovery disputes.
In California, Code of Civil Procedure section 1985.3 imposes specific requirements when one party serves discovery subpoenas on specific types of professionals who have financial or medical information about an opponent. Under those circumstances, the statute mandates a special ten-day buffer time during which the opposing party can challenge the discovery request without worrying that his doctor or accountant might start spilling information that is fundamentally private. Here’s some of relevant statutory language so you can see what I’m talking about:
(a) For purposes of this section, the following definitions apply:
(1) Personal records means the original, any copy of books, documents, other writings, or electronically stored information pertaining to a consumer and which are maintained by any witness which is a physician, dentist, ophthalmologist, optometrist, chiropractor, physical therapist, acupuncturist, podiatrist, veterinarian, veterinary hospital, veterinary clinic, pharmacist, pharmacy, hospital, medical center, clinic, radiology or MRI center, clinical or diagnostic laboratory, state or national bank, state or federal association (as defined in Section 5102 of the Financial Code), state or federal credit union, trust company, anyone authorized by this state to make or arrange loans that are secured by real property, security brokerage firm, insurance company, title insurance company, underwritten title company, escrow agent licensed pursuant to Division 6 (commencing with Section 17000) of the Financial Code or exempt from licensure pursuant to Section 17006 of the Financial Code, attorney, accountant, institution of the Farm Credit System, as specified in Section 2002 of Title 12 of the United States Code, or telephone corporation which is a public utility, as defined in Section 216 of the Public Utilities Code, or psychotherapist, as defined in Section 1010 of the Evidence Code, or a private or public preschool, elementary school, secondary school, or postsecondary school as described in Section 76244 of the Education Code.
(b) Prior to the date called for in the subpoena duces tecum for the production of personal records, the subpoenaing party shall serve or cause to be served on the consumer whose records are being sought a copy of the subpoena duces tecum, of the affidavit supporting the issuance of the subpoena, if any, and of the notice described in subdivision (e), and proof of service as indicated in paragraph (1) of subdivision (c). This service shall be made as follows:
(1) To the consumer personally, or at his or her last known address, or in accordance with Chapter 5 (commencing with Section 1010) of Title 14 of Part 3, or, if he or she is a party, to his or her attorney of record. If the consumer is a minor, service shall be made on the minor s parent, guardian, conservator, or similar fiduciary, or if one of them cannot be located with reasonable diligence, then service shall be made on any person having the care or control of the minor or with whom the minor resides or by whom the minor is employed, and on the minor if the minor is at least 12 years of age.
(2) Not less than 10 days prior to the date for production specified in the subpoena duces tecum, plus the additional time provided by Section 1013 if service is by mail.
(3) At least five days prior to service upon the custodian of the records, plus the additional time provided by Section 1013 if service is by mail.
The statute is endless but that’s the gist: when a financial or medical professional has information relevant to the suit, it gets special treatment during discovery.
Once the Murphy will contest kicked into high gear, one of the things I prepared was a deposition notice asking Carol Ann’s mom, Laura, to show up to testify under oath. Brown promptly objected that I had failed to provide the required 1985.3 notice.
This objection was beyond bogus, so I filed a discovery motion asking that the Court issue an order requiring Laura to appear and pay us attorney’s fees for having to file such a stupid motion. Keep in mind as you read the following that all that a discovery commissioner does is review discovery motions. To the extent that there is a section in the Code of Civil Procedure dedicated to discovery, the commissioner should know each of those statutes backwards and forwards. Moreover, the discovery commissioner to whom my motion was assigned had been doing this work, and this work alone, for at least a decade.
The evening before the hearing, the discovery commissioner issued his tentative ruling: Our deposition notice to Carol Ann’s mother was defective because it did not comply with 1985.3. On the day of the hearing, I explained to the discovery commissioner that 1985.3 is intended to protect very specific information and is directed professionals who would be expected to have that information. Mothers, I said, were not included in that list.
The commissioner shot Mr. Brown a look that said, “Help me out here.” Brown responded with meaningless bombast. I said, “Read the statute. It doesn’t say anything about mothers. They’re not in any specific professional class when it comes to financial or medical information.”
Much put upon, the commissioner got out his copy of the Discovery Code, laboriously turned to the correct page, and then started reading the statute, his lips moving as he read. After a good five minutes, he looked up at Brown, and in a voice heavy with resignation said, “She’s right.” You could see that, without knowing anything about the case beyond Brown’s inflammatory allegations, he felt “there’s something there” and was going to try to avoid the clear letter of the law in order to give Carol Ann an advantage.
Reluctantly, the commissioner ruled in my favor. Then, again ignoring the language of the law, he refused to award my client attorney’s fees. I resented that, but was happy with the half loaf I had walking out of his office.
Those two stories are the most egregious examples of judicial malfeasance in the Murphy case, although there were many more. The discovery commissioners and the Law & Motion judges were determined to keep my clients from having their day in court and would cheerfully and repeatedly ignore explicit statutory requirements or clear case decisions to achieve that nefarious goal. That’s when I started hating judges.
Before I move on to one more story about the outrageous conduct those SF Superior Court judges display, let me tell you how the case ended. We finally went to trial before a true judge: He listened carefully to the evidence and scrupulously followed the law.
Also, because he was black, his mere presence on the bench deprived Brown of one of his key factual points, which was to refer repeatedly to Ilene’s black heritage. (You couldn’t tell she was black by looking at her, because she looked very much like Carol Channing, who is also partially black.) Brown’s point, had he been able to make it, was that Mrs. Murphy, a San Francisco Irish lady, would employ blacks but could never, ever grow fond of them or leave them something in her will.
In a setting in which the judge applied the law to the facts, our victory was a foregone conclusion. Not only did Ilene inherit the house, but Vlad’s, Peter’s, and her reputations were completely cleared. We also won over a million in attorney’s fees. Brown filed several appeals, but the trial judge had run such a clean, honest trial, the appeals went nowhere. A good, honest judge makes a big difference up and down the line.
Not long after that case ended, I learned that, in SF Superior Court, if you represent a bank, you will probably lose. I often represented banks. One of my cases involved a little old lady who took out a loan without intending to pay it back, something that came out loud and clear through contemporaneous documents and through the lady’s testimony during her deposition. When she failed to repay the loan, my client, the bank, sued. Again, motion practice failed us and we ended before the judge.
When the trial started, we filed an “in limine” or preliminary trial motion aimed at shaving away issues. One of the motions argued that the borrower had no defense to her default, because her loan application was fundamentally fraudulent. The African-American judge, who was famous in Leftist political circles, reluctantly granted our in limine, which ought to have ended the case. Instead, he insisted that the case go forward, remarking to us, off the record, that “there’s more than one way to skin a cat.” And skin that cat he did. The bank left empty-handed, despite having followed all applicable lending rules and despite a borrower who defrauded the bank from start to finish, first by taking a loan without intending to repay it and then by failing to repay.
Leftist judges do not believe in the rule of law. They believe only in the relative balance of power between the two parties before them. In Mrs. Murphy’s case, San Francisco Superior Court’s resident Leftists saw an old lady and a housekeeper (and a lawyer and a retired cop) and concluded without any further information that the old lady was a victim. For them, that was the end of the case. The fact that the law did not even allow Carol Ann to sue or that the evidence showed that Laura had grossly abused Mrs. Murphy was irrelevant. Their belly buttons had spoken and the law went out the window.
The same held true in the bank case. As far as that judge was concerned, a bank is always bad. That it followed the rules was irrelevant. That loans are one of the economic engines that make our capitalist system functional was irrelevant. All that mattered to the judge was that he screwed a bank.
I was still fairly young as a lawyer when the above events took place, which is why they’ve stuck in my mind. As the years went by, I grew inured. It was par for the course for the judges, having predetermined that my clients (business people, banks, creditors) were inherently predatory and evil according to the Leftist hierarchy, to insult my clients in front of juries, and generally to ignore the law when it refused to harmonize with the judges’ social justice obligations, all of which trumped fealty either to the Constitution, or the laws and case authority of California and the United States.
My career as a litigator for business interests in the San Francisco Bay Area left me profoundly disrespecting judges. I don’t mind losing if my client deserves to lose (or if I write a bad pleading that deserves to lose), but it makes me crazy to lose when the law is on my side, but the social activist judge has his own ax to grind. I know there are good and decent judges out there, but I have had too many run-ins with judges who see the rule of law as an inconvenience, rather than the biggest, brightest dividing line between a civil society, one in which people can rely on the law to govern their behavior, and a sh*thole, hell hole, banana republic in which the person with the biggest stick (and judges have damn big sticks) wins.
Which brings me back to that Paul Mirengoff Power Line post I mentioned at the top of this post:
On July 10 of this year, the White House issued an executive order giving agency heads the authority to select their own administrative law judges (ALJs).
The Washington Post editorial board expresses concern that, under this executive order, political appointees will pick like-minded ALJs to better serve their agendas.
The order threatens the independence and professionalism of those charged with overseeing thousands of administrative decisions a year, the Post’s editors complain. They add that “there is value in having a cohort of qualified, impartial arbitrators working on administrative disputes.”
I agree, in theory. If ALJs truly were politically neutral, any order disturbed that happy status quo would be objectionable.
The problem is that ALJs often are not politically neutral. The Post’s claim that that this “used to be a proudly nonpartisan position rings hollow.
Having lived almost all of my life in the Washington, D.C. area, I’ve known more than a few administrative law judges. Nearly all of them are/were liberal Democrats. That’s hardly surprising. The federal bureaucracy that produces ALJs is almost entirely liberal Democrat.
This doesn’t automatically mean my acquaintances were biased when acting in their official capacity, and I trust some were not. However, during the first half of my legal career, I practiced from time to time before administrative law judges. In general, I did not find them to be models of impartiality. Instead, their liberalism tended to seep into their judging to at least some degree.
Mirengoff, who wrote the above, is too kind when he says in the last sentence quoted that administrative law judges’ “liberalism tended to seep into their judging.” For Leftist judges, the whole point of their job, whether they’re sitting on a bench or in an agency office, is to impose their so-called “liberalism” on the parties before them. They do not apply the law; they apply “fairness.” But it’s only their idea of fairness. It’s entirely unfair to those who follow the rules but happen to be on the list of disfavored people or entities in the Progressive hierarchy.
This is why conservatives are always better judges: Their conduct is controlled by the law, not by their belly buttons. Sure, they’re going to be affected by the parties because they are human, but they still look to an outside source for their ultimate ruling. If there are two outside sources they’ll hew to the one that reams the party they’ve come to hate, but they’re not going to say, “I know the law says…, but I think….” The moment your thinking trumps the law, you’re no longer a judge; you are, instead, a petty tyrant.