Jed Rakoff and Bobby McGee

When Southern District of New York Judge Jed Rakoff decided not to be a rubber stamp for the settlements of the SEC, it was like spitting in the government’s face.  Who is he to question what the minions of the executive decided, especially since they hope to be gainfully employed after leaving government service. This was a game where everyone knew the rules, and yet Judge Rakoff wasn’t playing fair.

The  WSJ Law Blog reveals a truth hidden beneath the robes in its profile of Jed Rakoff.


Before he found the death penalty unconstitutional in 2002, Rakoff says he suspected his ruling would be reversed because he knew a majority of judges on the U.S. Second Circuit Court of Appeals would interpret a Supreme Court decision on the issue, Herrera v. Collins, differently than he did. (He thought he might get lucky if he drew a 2nd Circuit panel that included the few judges who would agree with him.) The judge, who still believes he “had it exactly right on the law,” also told his wife before the controversial ruling that it would likely prevent him from being promoted to a higher court. “You’re having more fun in the district court anyway,” he recalls her saying.

In a land of feigned meritocracy, this tidbit says more about the judicial system than any lawyer’s rantings.  One day, a lawyer who was sufficiently respected and avoided pissing off enough people to obtain a nomination to the district court and manage to avoid disapproval in the Senate was forced to make a decision that, in his mind, spelled the end of any potential to climb higher on the judicial ladder.  And he made a choice.

I’ve liked Judge Rakoff ever since I testified before him in a §1983 action, because he got my jokes. I can’t fathom why his height of 5’8″ is an issue, as raised by the WSJ, as it’s the perfect height for a man in my humble opinion.  His beard is fine, but nothing to write home about.  And while I may not agree with all of his decisions, I’m fairly certain he doesn’t care what I think.

When we argue to a judge, we realize that judges, like the rest of us, harbor prejudices and beliefs about right and wrong, the world around us, everything.  We attribute characteristics to them that we assume to be favorable or antagonistic to our positions.  We may try to formulate our argument to be as appealing as possible to the judge’s bias, but arguments are self-constraining.

What we rarely do is recognize that a judge, who might otherwise give us a perfectly fair hearing in conformity with his own belief system and prejudice, has another, less savory, concern lurking in the back of his head.  His future.

This issue has arisen with one of my favorite judges,  John Kane in Denver. who as a senior judge has come to grips with the fact that his judicial career will end in the district court.  He will never be nominaterd for the circuit, and will never need to look for a house in Washington, D.C.  Because of this, and life tenure, he is free to do what he believes is right.  He can make enemies and take risks. He can be a judge.

The issue also arises when discussions about elected versus appointed judges flare up.  The argument is that the former is ridiculous, as voters lack any basis whatsoever to elect a judge, voting instead down party lines or for the one who puts the most posters on telephone poles.  On the other hand, appointed judges are presumably vetted for competency, but what about decsions dictated by the desire to please those whose fingers will sign off on their next appointment?  Or more accurately, to not offend their patrons. 

We want to believe that every judge is bold enough to rule without fear that it will impair their personal interests.  This “outtake” from Jed Rakoff reminds us that our belief is naive.  Judges have a career path just like assistant managers at Dairy Queen, and they will never reach the pinnacle of success if they put too many sprinkles on an ice cream cone.

I don my cap to Jed Rakoff for sacrificing his personal interest in moving to a higher bench to make the ruling that he believed to be right, even if politically unpopular and destined to end his forward progress.  I hope all judges would do the same thing, though if they would, this thought would never have entered Judge Rakoff’s head.  We all know this, but rarely see it spelled out so clearly and honestly.

And so I dedicate one of my favorite songs to a judge of great stature.

3 comments on “Jed Rakoff and Bobby McGee

  1. Andrew

    I can’t help but think that the Iowa Supreme Court justices would have had similar misgivings about Varnum v. Brien, and three of them got booted out thanks to a whole lot of “conservative” money coming in from outside the state to defeat them in a retention vote. Maybe it isn’t what those judges wanted for their careers, but on the other hand, I would imagine they would have a lucrative career ahead as plain old attorneys (“Hi, I used to be on the state Supreme Court. Hire me to litigate your appeal.”) since they were voted out, not removed for misconduct.

    You’ve brought home a theme again and again, that doing the right thing as an attorney or judge quite often opposes the attorney’s or judge’s personal interests. I’m glad that people like you — and Judge Rakoff, and the many others — put principles (for an attorney, read “clients”) first.

  2. Thomas Stephenson

    Well, the problem with elected judges isn’t so much that the voters aren’t qualified to elect judges, but that judges run their political campaigns with money donated by people with a lot of interest in the legal system.

    If insurance companies donate heavily to a judge’s campaign, how do you think the judge is going to rule when a case involving an insurance company? Hard to be impartial when one party is (indirectly) bankrolling your reelection campaign.

  3. SHG

    I’ve written extensively on the problems with electing/appointing judges. This was just a one line throwaway, so chill.  There are many problems, but I get to include the one I want to (you know, because this is my blawg?).

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