Greetings from Hong Kong, where the Kavanaugh hearings have been the subject of much discussion among non-American colleagues based here, many of whom stayed up into the night to watch the hearings live. I have wanted to say something about this for a while now, and so I thank Jen Reynolds and John Lande for blazing a trail with their recent posts. To me, the hearings are an opportunity for us as ADR experts to reflect on and critique aspects of our public system of adjudication—epitomized in so many ways by the U.S. Supreme Court—through the lens of private adjudication.
The basic problem as I see it is that the Court today is ideologically polarized. Empirical studies have proven time and again that the Justices vote in predictably party-driven ways. To say that the Justices are biased, in other words, is an understatement. Whatever we may tell ourselves about the power of the rule of law to constrain decision-making, very little of that appears true the level of our nation’s highest court. At that level, at least, public adjudication looks a lot like the way that critics of private adjudication portray arbitration: A lawless process presided over by partisan adjudicators, beholden to the interests of those who appointed them.
One way that arbitration law and practice have evolved to deal with these dangers is the system whereby the parties each appoint one arbitrator, who then jointly select and agree on the tribunal chair. Delegating the selection of the chair to the wing arbitrators, rather than having the parties do so directly, reduces the risk that the party with greater power or resources will exert undue influence over tribunal composition. This is because weak parties can, in theory, appoint strong wing arbitrators. And when those wing arbitrators meet independently and on an equal footing jointly to select the chair, this guarantees at minimum the appearance of neutrality.
The predicament of the Supreme Court today is a lot like that of an arbitral tribunal that for one reason or other needs to replace its chair. As the crucial swing vote, Justice Kennedy came as close to the ideal of the neutral tribunal chair as we may see from a Justice for some time to come. But in the current political climate, at least, the procedure for selecting Kennedy’s replacement seems anything but neutral. The Office of the President is itself political, and in a representative democracy members of Congress are elected by majority vote. And today more than during most periods in our history, we are a country bitterly divided. The upshot is that the judicial appointments process is currently susceptible to ideology and power to a degree that the system of choosing an arbitral tribunal chair is not. A possible analogue in the arbitration context would be a system where, instead of each party taking turns choosing their wing arbitrator and the wing arbitrators selecting a chair, the side with more money or greater sophistication has the power to fill any empty tribunal seats—just because, well, they have the power. True, these sorts of shenanigans have happened (continue to happen?) in arbitration and have rightly drawn the ire of critics and supporters alike. Just think of the infamous Hooters case. But when it occurs in plain sight, in the course of appointing judges for lifetime tenure on our highest courts, somehow we accept it as the way things are or the way they must be. We criticize the partisan actors like Lindsey Graham to be sure, but we rarely think to interrogate the very rules of engagement.
I wonder if it might not be better for the judicial appointments process to take a page from arbitration’s book. Here’s a thought-experiment: Perhaps we should entrust the four liberal justices and the four conservative justices with the task of agreeing among themselves on a jurist who they think would provide balance to an already fractured court. Or perhaps this task could be delegated to an even number of Republican and Democratic legislators. Perhaps three such jurists could be pre-nominated through this process, at which point the President would get to present one of the three to the Senate, which in turn would carry out the confirmation process. Either of these seems more likely to result in the appointment of a truly neutral, non-partisan individual. And rather than hold public hearings, which tend to force each side to dig into their positions out of fear of disappointing their constituents, perhaps the pre-nominators should do so behind closed doors, where they would have the freedom to think outside the box and make compromises for the sake of identifying the best possible jurist. Although critics of ADR are sometimes correct to point out the virtues of publicity, in cases like the Kavanaugh hearings one can’t help but wonder whether the shameless display of partisanship and self-interest, for all the world to see, was worth it.
One final arbitration analogy. Judges are rarely put in the position of being themselves judged (as opposed, say, to having their opinions judged). By contrast, arbitrators are often interviewed before they are appointed as a way of sussing them out on their experience, their views about the case or about the legal issues involved, and their judicial demeanor. Of course they typically don’t get the kind of questions (let alone accusations) that Judge Kavanaugh had to contend with. But depending on the nature of the case it is possible to imagine that an arbitrator candidate could be asked some tough personal questions, or even be confronted with past rulings while on the bench or accusations that may have been made in the press or to disciplinary boards.
Given that, would any reasonable party agree to entrust their dispute to an arbitrator candidate who displayed even one tenth of the contempt, entitlement, and rigidity that Judge Kavanaugh did during his hearings? Even assuming Judge Kavanaugh did not do what he is accused of doing—and frankly I care little about what actually “happened” 35 years ago—hasn’t his demeanor alone killed any confidence we might have in his judicial temperament, his ability to hear both sides with equanimity, or his respect for due process? And if he wouldn’t even pass the smell test in a private arbitration appointment process, what does it say about our public system of justice that he might be appointed to the Court nonetheless?