Is "Refusing to Rule" a New Form of Judicial Activism?

It seems a trend of judicial activism is growing in our federal courts. Judges have apparently learned they can advance their own agenda through what appears to be a new form of judicial activism - doing nothing! Judge Robert Gerber in the Southern District of New York Bankruptcy Courts has been doing this for years by not ruling on motions before him in the LyondellBasell bankruptcy case. Now it seems Washington, DC Federal District Judge Amy Berman Jackson has learned this trick in relation to the Contempt of Congress charges filed against U.S. Attorney General Eric Holder.

In 2012 the U.S. House of Representatives held AG Holder in Contempt of Congress for his failure to release documents related to the "phony" (because Obama says it is phony) scandal, Fast and Furious. Holder responded to the charges by filing a federal lawsuit in the D.C. Court of Judge Jackson. Jackson, appointed by President Obama in 2011, is between the proverbial rock and an unethical place. In April of this year, The Hill reported in April that Judge Jackson had yet to rule on whether she even has jurisdiction to hear the case. This was after eight months.  

Congressman Ted Poe reported earlier this week in a speech to Houston business leaders that Judge Jackson has still failed to rule. Poe, a former Texas District Court judge, told the group of oil field executives, "I wish I were the judge in this case... There would be a ruling!"

Bankruptcy Law Review asks the question, is the law king or are judicial "Kings" now the law"? Are judges making new laws by simply not making a decision?

Here is where the judicial activism comes into play. As an Obama appointee, who was no doubt screened as a nominee by Holder and the DOJ, it is doubtful Judge Jackson would want to rule against the goose who laid her golden egg of a lifetime federal appointment. If she were to follow the law and make a ruling claiming jurisdiction over the case, it would certainly not sit well with President Obama and would probably ruin her opportunity for advancement to an appellate court or even the Supreme Court. But, on the other hand, if she rules, she does not have jurisdiction over the case (which she clearly has) she would be seen as being biased and risk being overturned by the Federal Circuit Court of Appeals. Her solution? Make no ruling and delay the case until Holder is no longer in office through either retirement or the end of his president's term of office.

You see, her decision to not make a decision is, in fact, a decision - A decision that cannot be appealed. It garners the same benefit as if she rules against the House but without the risk of an appellate reversal or questions of her bias. She can simply claim this is a complicated matter requiring further deliberation on her part and she continues to protect Eric Holder from criminal prosecution under the Contempt charges.

Judge Gerber has perfected this technique in the LyondellBasell bankruptcy case. He is known to be throwing a temper tantrum over the Supreme Court's decision limiting the powers of bankruptcy judges as opposed to the authority of a real "Article III" judge.

In the LyondellBasell bankruptcy, common stockholders are being sued by greedy Wall Street bankruptcy lawyers for merely owning the stock of the old Lyondell company. Shareholders have made motions to Gerber's court seeking relief from these frivolous lawsuits. However, Gerber is known to believe he should be able to allow these kinds of suits as part of his theory of using bankruptcy courts as social welfare tools to redistribute wealth. By not ruling, defendants are forced to settle cases with these Wall Street lawyers because they can't afford to continue paying their own lawyers to defend them. If he ruled properly that the lawsuits were, in fact, frivolous and dismissed the cases, his agenda would not be furthered. If he ruled against the defendant's motions, he would be likely reversed on appeal. His solution is the same as Judge Jackson's - MAKE NO RULING.

Imagine you are a being sued because you own some company's stock in your 401K or other retirement fund. How long could you afford to pay an attorney to defend you when the judge won't make a ruling for years?

It seems some of these judges may have found a new form of judicial activism. They have found a way to move their own political agenda forward without any risk of being overturned by simply not ruling. Is this judicial activism? Or perhaps, is this rampant judicial misconduct? Perhaps Congress should start looking into this and see if some of these judges should be removed from the bench or otherwise sanctioned for failing to rule.

Judge Gerber will be speaking before an American Bankrupty Conference in New York next month. Perhaps that would be a good time for me to ask him about this theory of new judicial activism.