Justice Kennedy: Are Judges Abandoning the Bench?

by Paul Bland

In a series of decisions dating back many years, Justice Kennedy has proven to be a most reliable vote for those who wish to expand the use of mandatory arbitration in nearly every context in which the question has arisen. In Circuit City v. Adams, 532 U.S. 105 (2001), for example, he just declared as a self-evident truth that mandatory arbitration is cheaper than litigation in court.  Id. at 132 ("Arbitration agreements allow parties to avoid the costs of litigation. . . .").  The Justice did not cite to anything for this proposition, and no wonder, as indeed it is simply untrue in many circumstances. Because arbitrators charge by the hour – unlike judges, whose salaries are paid by the taxpayers and the government – many consumers and employees have been hit with huge bills in order to pursue their claims in arbitration. Justice Kennedy has also spoken favorably about how mandatory arbitration can reduce the "burden to the courts" of litigating employment discrimination cases. (Many civil rights lawyers have expressed frustration to me that the Justice views their lives’ work as a "burden.")

Yet, even Justice Kennedy has apparently found ONE thing about it that he doesn't like: because arbitrators can make a lot more money, arbitration is luring good judges from the federal bench. In recent testimony to the U.S. Senate Judiciary Committee, Justice Kennedy made the following point in support of a pay raise for federal judges:

There are two present dangers to our maintaining a judiciary of the highest quality and competence: First, some of the most talented attorneys can no longer be persuaded to come to the bench; second, some of our most talented and experienced judges are electing to leave it.  In just the past year, two of the finest federal district judges in California have left for higher-paying jobs elsewhere, one in academia and the other in the state judiciary. The loss of these fine jurists is not an isolated phenomenon. Since January 1, 2006, ten Article III judges have resigned or retired from the federal bench. It is our understanding that seven of these judges sought other employment. In 2005, nine Article III judges resigned or retired from the bench, which was the largest departure from the federal bench in any one year. Four of those nine judges joined JAMS, a California-based arbitration/mediation service, where they have the potential to earn the equivalent of a district judge’s salary in a matter of months. My sense is that this may be just the beginning of a large-scale departure of the finest judges in the federal judiciary. It would be troubling if the best judges were available only to those who could afford private arbitration.

Justice Kennedy is absolutely correct on this point – many former federal judges are now working as paid arbitrators and mediators for private companies, and it seems very likely that many sitting federal judges are thinking of changing over as well. One question to be concerned about, however, is the possibility that some judges out there are writing opinions and making precedents that will push ahead the trend to move cases from court to arbitration because they want more cases to go to arbitration so that there will be more work for them (and more cases in which to bill) after they leave the bench. This issue was discussed extensively in a Fall 2001 series of articles in the San Francisco Chronicle, that gave rise to hearings in the California Legislature. In one article, the newspaper reported that the chairman of the state assembly’s Judiciary Committee said his colleagues would examine "whether sitting judges compromise the behavior on the bench to impress arbitration firms that can offer the judges potentially lucrative jobs after retirement."  California passed stern ethics and disclosure requirements for both judges and arbitrators to safeguard against this possibility, but no other state has followed suit.

It will be interesting to see if Justice Kennedy’s remarks reinvigorate the debate over this potential conflict of interest.