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Being a Judge Means Never Having to Say You're Garbage

posted by Bob Lawless

The 2005 bankruptcy amendments (known as BAPCPA) are garbage. Shhh. Don't tell Senator Grassley I said that, or he might be angry with me also.

At Wednesday's Senate hearing, Senator Grassley expressed his displeasure with bankruptcy judges criticizing the 2005 law and stated he was going to write a letter to Chief Justice Roberts asking if such criticisms were unethical. Senator Grassley said that such statements undermined respect for the law. Senator Grassley's full statement is here. Although lengthy for a blog post, it is only fair to reproduce his exact words:

In addition, I've seen more than one instance of bankruptcy judges criticizing the new law in very inappropriate ways. This is extremely disappointing. This does not comport with my understanding of proper judicial behavior. 

Of course, any judge should be free to exercise his or her judgment about how to interpret the new law, and I certainly would never want to infringe on the core work of a judge. But when judges give press interviews and call the new law "garbage" or question Congress' motives for passing bankruptcy reform during a court hearing, I think a clear line has been passed. Congress writes the laws; judges are supposed to interpret and apply the laws in an impartial manner. The bottom line is Congress passed bankruptcy reform by a wide margin with both Republicans and Democrats supporting it. The President signed it into law. 

That's how the American legal system is supposed to work. We have a democracy. Unelected federal judges don't get to substitute their own personal policy preferences for the considered decisions of the elected branches. 

But that doesn’t appear to matter to some bankruptcy judges who have decided they know better than everyone else how this country ought to be run.

In his remarks, Senator Sessions said that judges should apply the law as written, which was a sentiment to which Senator Grassley also alludes in his attack on the bankruptcy judicary. One way to read Senator Grassley's remarks is that judges should not criticize Congress, a broad claim at war with First Amendment values. Such a claim should fail on its face, and surely Senator Grassley would not take that position. Let's give Senator Grassley the benefit of the doubt and assume he is making the narrower claim that Senator Sessions made, that judges should just apply the law as written and without commentary.

After I quoted In re Jones, No. 06-33790 (Bankr. S.D. Tex. Oct. 20, 2006) (available at 2006 WL 3020477), Senator Sessions also had said that judges should just apply the law as written. The case I quoted involved a dismissal because credit counseling had occurred 190 days before the bankruptcy filing, not 180 days as required by the statute. Judge Wes Steen had put it plainly and eloquently:

[T]he Court is obliged to dismiss regardless of the fact that Debtors 'almost' met the requirements of the statute, regardless of the fact that Debtors seem to have satisfied Congressional objectives that were enacted as part of the statute, regardless of the fact that no one contends that Debtors were not in good faith, regardless of the fact that no one contends that they did not make a zealous effort to accomplish the Congressional objective, and regardless of the fact that no useful purpose will apparently be served by dismissal.

The judge did apply the law as written. Indeed, he went out of his way to make clear that he was applying the law as written, despite his disagreement with the outcome. Senator Sessions missed that point, but it was not a high school debate. My time had expired, and I could not respond.

The statement in Jones appears to be the type of thing to which Senator Grassley had objected earlier. When they make such statements, the courts are not being obstructionist. Rather, they are expressing clearly their lack of activism, their application of the law as written despite their disagreement with it. Far from being a lack of respect for the legislative determination, such views reinforce the primacy of a democractically elected legislature as the appropriate law-making body. Judicial statements about the law's shortfalls, whether it be bankruptcy law or any other field, should be strong signals to the legislative branch about how to improve the law. To his credit, Senator Sessions stated that he felt Congress should listen to the input of judges on how a law is being applied. Congress is certainly not obligated to accept the judges' view of the world, but judges play an appropriate role in having a dialogue with the legislative branch about a law's operation. To the litigants in the cases before them, such a dialogue makes clear that the judge is applying the determination of a democratically elected legislature, not the judge's personal views. How does that undermine the law?


Members of Congress have never taken kindly to having their work product criticized in print. What makes these particular comments troubling is the suggestion that they ought to be treated as a species of misconduct. For bankruptcy judges, whose appointment is subject to termination for "misconduct" -- a term left undefined in the statute, and unlikely ever to be the subject of case law development, the in terrorem impact of such threats is obvious -- and very troubling for the rule of law. Thankfully, I suspect that cooler heads will prevail.

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  • As a public service, the University of Illinois College of Law operates Bankr-L, an e-mail list on which bankruptcy professionals can exchange information. Bankr-L is administered by one of the Credit Slips bloggers, Professor Robert M. Lawless of the University of Illinois. Although Bankr-L is a free service, membership is limited only to persons with a professional connection to the bankruptcy field (e.g., lawyer, accountant, academic, judge). To request a subscription on Bankr-L, click here to visit the page for the list and then click on the link for "Subscribe." After completing the information there, please also send an e-mail to Professor Lawless (rlawless@illinois.edu) with a short description of your professional connection to bankruptcy. A link to a URL with a professional bio or other identifying information would be great.