Back in September, 2005, the Senate held confirmation hearings for the nomination of John Roberts to the Supreme Court. In his opening statement
, then Judge Roberts said: “Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don’t make the rule; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpires.”
This was a smart analogy for Judge Roberts to use in trying to put to rest concerns about his judicial philosophy. I mean, if a judge is simply calling balls and strikes, all we can legitimately ask of him is good eyesight, fairness, knowledge of the rules and a good work ethic, right?
Like all analogies, it may be effective in throwing light on a more complex truth. But analogies can also obscure truth. The issues that come before judges often deal with closly competing facts and legal principles. They commonly deal with unsettled issues in the law. At the level of the Circuit Courts of Appeal and the Supreme Court, they often involve conflicting opinions from lower courts. In short, the umpire analogy provides a very limited understanding of what trial judges do and is actually more inaccurate than true as applied to appellate judges.
This comes to mind this week in light of some recent ERISA decisions I’ve read. In cases with closely competing facts or legal principles, judges have to come down on one side or the other. And the thing that more likely than not dictates how a judge will come down in those types of cases is their own personal beliefs and experiences. It couldn’t really be any other way. So the values and life background of the people appointed or elected to the bench become critical.
More troubling is the situation where judges feel strongly enough about a particular issue or circumstance that they look for opportunities to push the law in the direction of those beliefs. In all but the most clear cut cases, you can find these individuals taking the law, as developed in the precedential or persuasive effect of decided cases, in the direction they subjectively believe is correct, just and fair. In so doing, they disregard to varying degrees, reason or precedent. This, too, is quite common and, to some extent, inevitable. How troubling or damaging is this approach runs a broad incremental spectrum. It depends on how willing the judge is to push his subjective view and how obvious are the facts or legal precedent he is willing to ignore.
So how does this show up in ERISA cases? For one, it is very clear that there is a big difference between how your average federal judge treats ERISA administrators and fiduciaries when they fail to measure up to their statutory or plan language duties and how the same judge treats a beneficiary who fails to satisfy some obligation the beneficiary has under the language of the statute or plan terms. For example, federal case law uniformly holds that ERISA fiduciaries need only substantially (rather than strictly) comply with ERISA’s claims procedure requirements. Given the ability fiduciaries have to insulate their final decision
to deny benefits from meaningful review by a federal judge, why in the world would it be proper to also allow the process
used to reach the insulated process to be haphazard? There are many other ways in which the federal judiciary allows ERISA fiduciaries to cut corners to the plan beneficiaries’ detriment.
I challenge any reader to tell me where “substantial” compliance with any of ERISA’s clear cut statutory or plan language requirements is allowed for plan beneficiaries while, at the same time, plan administrators and fiduciaries are required to strictly comply with the same or a similar statutory or plan language duty. None come to mind for me. But I don’t make a concerted effort to view things from the defense perspective.
Seriously, you defense folks, what examples have you got?
To reply to this message, enter your reply in the box labeled "Message", hit "Post Message."