Prof. Rory Little Writes Op-Ed for Daily Journal
The following op-ed by Professor Rory Little was posted on the Daily Journal on September 21, 2010.
Professor Rory Little opines that the President's judicial nominees be judged on their record. In the case of U.S. Magistrate Judge Ed Chen, that record encompasses 10 years as a judge with over 350 written opinions.
View the Daily Journal article
Review Judge Chen's Record Before Judging His Nomination
By Rory Little
Explaining last summer why they would vote against Supreme Court nominee Elena Kagan, Senators Jon Kyl, R-Arizona, and Jeff Sessions, R-Alabama, criticized her lack of judicial experience and her "paper-thin paper trail." The irony of this critique loses all humor when we examine the U.S. District Court nomination of U.S. Magistrate Judge Edward Chen - who has nine years of federal judicial experience and hundreds of written opinions on which he may be judged - yet whose nomination has been stalled for over 13 months now. In a federal district with a crushing judicial workload - over 150 percent of the average federal judicial caseload and a higher per-judge caseload than 85 of the 94 federal districts - the political blockage of Judge Chen's nomination is, frankly, a scandal.
Meanwhile, a brief examination of the over 350 written opinions by Judge Chen reported in a computerized search, reveals a straightforward, follow-the-law-and-precedent judge, whose opinions consistently play straight down the middle and are devoid of political statements or unnecessary philosophizing. (And also hard-working - that is roughly one written opinion every week for nine years!) In fact, if anything, Judge Chen's opinions, scholarly and citation laden, are generally boring (please forgive me), pleasing only to legal technicians and sedate students of the law. The record reveals that this is not an "activist" judge by any definition. Instead, Judge Chen's moderated, thoughtful, and precedent-laden legal analyses show him to be a "lawyer's lawyer," whose lack of result-oriented reasoning might disappoint the politically minded.
With such a trail of published writings, and such a long and solid record of judicial moderation, one might readily ask why Judge Chen has not been quickly confirmed? The best answer is, "he should have been." But the true answer is a four-letter expletive to some: ACLU. In an op-ed opposing Judge Chen, the overtly politicized Washington Times did not mention, let alone quote from, even one judicial opinion from among Judge Chen's hundreds. Instead the editors simply noted that he was "long active" with the American Civil Liberties Union (not mentioning that he was active as a lawyer - it was his job). Such a refusal to review Judge Chen's judicial record is unfair, as well as misleading. That record simply does not portray the "radical activist" that ACLU opponents would like to stereotype.
Judge Chen graduated with honors ("Order of the Coif") from a top-10 national law school (UC Berkeley School of Law). He was selected as a law clerk for a federal district judge, and then for a second clerkship by the then-Chief Judge of the 9th Circuit, James Browning. Afterwards, Judge Chen practiced private law firm litigation for three years. Obviously this is a stellar student of the law with a bent towards practice and litigation - precisely the sort of nominee Senators Sessions and Kyl have said they want.
Like many young lawyers, however, Ed Chen wanted more responsibility than a law firm might provide. He thus made the fateful decision to become a staff attorney handling litigation for the ACLU, where he practiced without grandstanding or political oration for some 15 years. He obviously handled some important constitutional matters, and the ACLU is well known for defending "liberal" causes. However, the length of Judge Chen's tenure as a litigator there shows a devotion to the mechanics and dispute-resolution mechanisms of the law, as much as to any "political" cause.
But most important, as our Senators' critique this past summer indicates, is not what Ed Chen did a decade or more ago, but "what has he done recently?" Judge Chen's "recent" record of almost 10 years as a judge is a longer record of federal judicial experience than most nominees. Let's examine just a few of his opinions, which I believe are representative of the judge overall.
Criminal Matters
The "ACLU Judge" always rules for the criminal defendant, right? And always accepts "liberal" constitutional arguments, right? Wrong, on both counts. As just one example, in U.S. v. Gardner, 523 F.Supp.2d 1025 (2007), Judge Chen rejected constitutional arguments and ordered that an indicted defendant wear an electronic monitoring bracelet while awaiting trial. He noted that "preventing crimes by arrestees is a legitimate and compelling interest." He explained that legislation on the topic was valid, and rejected the decision of a federal court in New York that had held to the contrary. His opinion is straightforward and scholarly, examining law review articles and history going back to 1789. This is hardly the work of an "activist" judge - and the criminal defendant lost.
Employment Discrimination
Similarly, the former ACLU litigator with a specialty in employment discrimination will always rule against the employer, right? Wrong again. Again, take just two examples from the hundreds of Judge Chen's representative written opinions.
In Davis Cowell and Bowe LLP, v. Social Security Administration, 2002 U.S. Dist. Lexis 9548 (2002), Judge Chen ruled in favor of the government and against a well-known plaintiffs employment law firm. The law firm claimed records it sought would reveal anti-employee practices. But Judge Chen found the records protected from disclosure, relying heavily on an opinion written by a conservative leader, Chief Justice William Rehnquist (Church of Scientology, 1987).
So too, in Finley v. County of Marin, 2009 U.S. Dist. Lexis 119863 (2009), did Judge Chen reject a smorgasbord of race discrimination claims presented by an African-American plaintiff. This particular opinion of Judge Chen's is notable for its detailed examination of the evidence and its crisp presentation of legal standards and decisive rulings. And the employment discrimination plaintiff lost.
Other rulings
Of course, attempting to present a decade-long body of judicial work in a short op-ed is frustrating. No doubt when a judge has written hundreds of opinions - not trying to "hide" his judicial views - there are bound to be some that support different viewpoints. I cannot claim to have read all 357 of Judge Chen's written opinions. But I think I have chosen representative examples.
Thus, in City of Ann Arbor v. Gecht, 2007 U.S. Dist Lexis 21928 (2007), Judge Chen rejected the arguments presented by an employees' retirement plan. He ruled that even if the defendant's strategy revealed "gamesmanship," "the plain language of a statute" must control.
In an opinion truly remarkable for its scholarly survey of complicated securities and jurisdictional precedents, Judge Chen ruled against the employee's interests. I fi nd it typical of Judge Chen's opinions that they are, frankly, dry and legalistic. But that is the worst one can say about them. They are plainly not "result-driven," "activist," or "political" in any fair sense of the terms.
In the 9th Circuit
Judge Chen has, on occasion, been reversed by the 9th Circuit. But he has more often been affi rmed. And most revealingly, the multitude of his written rulings appear to not have been appealed at all. This is truly the mark of a successful judge: the parties accept his rulings and the law is effi ciently served.
One final example: In Brayton Purcell LLP v. Recordon & Recordon, 361 F.Supp.2d 1135 (2005), technical arguments regarding venue were presented in an unremarkable case alleging website copyright infringement. Among other things, the opinion demonstrates Judge Chen's devotion to carefully examining legal arguments even in cases which, to be fair, no one but the parties care about. Again, the mark of a truly good, hardworking judge that all stripes of political parties should want.
After ruling on venue, Judge Chen (as a good judge should) urged the parties to resolve their disagreement efficiently, outside the court. The parties went to binding arbitration. The loser, however, then took a delayed appeal to the 9th Circuit on the venue issue. The Circuit affirmed Judge Chen (575 F.3d 981 (2009). Conservative critics of Judge Chen should note that 9th Circuit Judge Stephen Reinhardt, a liberal icon (or, some might say, red-flag), dissented against Judge Chen's ruling.
Judge Chen Deserves a Fair Floor Vote
Ed Chen was approved by the Judiciary Committee almost 12 months ago. No one is pretending that he is not a Democrat, or that he holds no "liberal views" - any more than anyone would have pretended in 1986, that Antonin Scalia (confirmed 98-0) was not a Republican or a conservative. But the President is entitled to nominate members of his party. And qualified nominees are entitled to a vote. The Senate should judge Judge Chen fairly, and individually, on his judicial record - not the spelling of his prior employer's name. A person simply cannot disguise his judicial talents (or lack thereof) after a decade of public judging, thousands of cases, and hundreds of public opinions. Yet lawyers who have appeared before Judge Chen - winning or losing - consistently give him the highest accolades. He is a moderate, fair, and balanced Judge.
Yet Judge Chen has been denied a vote (as later nominees have been leap-frogged over him) for reasons that are purely political and not based on any individualized review of his record as a judge. Any fair examination of that record shows a "judge" in every meaningful sense of the word. A review of Judge Chen's many judicial opinions yields no principled reason to oppose him. Any citizen who cares about fair judging should urge the Senate to give Judge Chen the fair floor vote that his decade-long judicial record deserves.
Rory Little is a Professor of Law at U.C. Hastings College of the Law, in San Francisco. He is acquainted with Judge Chen but does not know him on a personal level.