17 January 2006

An Activist Judge

It is rare that a judge is truly lambasted by an appellate court for ignoring the law in favor of the judge's own policy preferences and biases. But, an appeal of a case in which 2003 George W. Bush appointee to the U.S. District Court for the Northern District of Illinois, Samuel Der-Yeghiayan (who background was first as a very competent immigration attorney for the government, and then for three years an immigration judge), denied a class action to a group of people suing based on federal credit reporting laws is such a case.

The appellate court noted that class action status was denied because (1) the lead plaintiff wasn't unethical enough, (2) the suit asked for the damages allowed by the law rather than a lower amount, (3) the defendant faced a severe punishment as a result of its violation of the law in 1.2 million instances, and (4) the lead plaintiff (and other members of her family) were suing all fifty companies that made illegal credit solications to them, rather than just a few of them. The case law supported none of these reasons for the decision.

It is hard to chalk this decision up to inexperience either. Federal judges have two paid attorneys each, working for them as law clerks, as well as briefs from counsel for both sides of a case, to point them in the right direction. And, nobody claims that this particular judge is a dim light generally, or incapable of delegating tasks to others. This particular judge was well known for his managerial expertise as a government attorney. This isn't anything like the situation faced by a state court, limited jurisdiction court judge with no staff who must constantly rule on a wide variety of matters in open court to keep a massive docket flowing smoothly, and occassional makes a mistake.

This isn't to say that the firm bringing the class action was without its flaws. The appellate court also noted that the settlement that the plaintiffs tendered with their request for a class certification had problems. But, the fact that a judge acts on his own biases to reach a result when more appropriate legal concerns about a case could have been considered instead, simply makes him not just an activist judge, but a sloppy activist judge.

Judge Der-Yeghiayan was confirmed fair and square, without a recess appointment, with the unanimous approval of the U.S. Senate, based upon credible recommendations from many individuals. He now has a lifetime appointment to the federal bench, and this is not the sort of case that even remotely qualifies as a basis from impeaching or otherwise disciplining a judge, unless he makes a habit of routinely ignoring the law. But, for some reason, I see a promotion to U.S. Circuit Court of Appeals for the 7th Circuit or D.C. Circuit in Mr. Der-Yeghiayan's future before Bush's term ends. Why? I can't imagine. I just hope that should such a circumstance come to pass that Democrats in the Senate, who unanimously approved the nomination of this blank slate judge to a relatively unimportant district judgeship in 2003, wake up to the fact that Der-Yeghiayan is a poster child for the label "activist judge" (in the conservative direction) and oppose his promotion.