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Saturday, October 06, 2007

Congratulations to new Fifth Circuit Judge Jennifer Elrod of Houston

I was tickled pink to read (h/t Mary Flood) that by a voice vote late Thursday, the United States Senate confirmed President Bush's nomination of Jennifer Elrod, previously the presiding judge of the 190th Civil District Court in Harris County, to the United States Court of Appeals for the Fifth Circuit.

I tried a week-long jury trial before Judge Elrod in 2006. It was a reasonably complicated commercial case, portions of which she had resolved through partial summary judgment, and the remainder of which she properly submitted to the jury, which returned a verdict in my client's favor. I did not agree with all of her rulings, and indeed, portions of the case are still pending on appeal, and I'm trying to get some of those rulings overturned. I would have blogged previously in support of her pending Fifth Circuit nomination but for the chance that had she not been confirmed, such might have been construed as "sucking up" in the event I'm back in the 190th Civil District Court in that case on remand next year.

Hon. Jennifer Elrod, now of the U.S. Court of Appeals for the Fifth CircuitBut "agreeing with Beldar 100% of the time" is not part of my standard for evaluating a judge's competency (which is good, because I've never yet met such a judge). "Giving Beldar and his client a fair shot when he's before you" is part of my standard, however. And in every instance during that trial, and during its extensive pre- and post-trial proceedings, Judge Elrod carefully and thoroughly considered my and my opponents' written and oral arguments. She displayed a thorough command of trial procedure and the rules of evidence during the trial. Before, during, and after the trial, Judge Elrod's rulings were timely and clear. She works hard. She presided over her court without undue pomp, but with unfailing courtesy and dignity — the sort that can aptly be called "Southern courtly manners" — and with a sure and firm hand. She showed herself to be simultaneously disinterested (she's unbiased) and interested (she paid attention). And she'd know and appreciate the difference between those two words: I have no doubts about her intellectual chops.

The broad and deep experience that Judge Elrod will bring from a big-firm civil litigation practice, and then from the civil trial courts of the nation's fourth largest city, will become a valuable resource for the entire Fifth Circuit. Nan Aron, president of the hard Left "Alliance for Justice" (a/k/a Alliance Against Republican Presidents' Nominees) organization, could find no more persuasive criticism of Dubya's nomination of Judge Elrod than to claim that "[b]y her own admission, Jennifer Elrod has never written a judicial opinion." That's either badly confused, or an outright lie, or more likely an outright lie designed to badly confuse Aron's readers: Trial court judges, of course, generally don't write appellate opinions, and the overwhelming practice in Texas state trial courts is that trial judges review, sometimes revise, but generally sign their names exclusively to orders and judgments prepared by counsel for the litigants. But three mouse clicks away on my own hard drive, I can find multiple examples of detailed written orders that Judge Elrod authored as a trial judge, typically because she was crafting, on her own initiative, a result that wasn't exactly what either side had proposed, or because she wasn't quite satisfied with what either side's counsel had submitted, or simply because her doing the drafting would advance the case in the most expeditious fashion. All of which is to say, she's done more judicial writing than her current job description requires or typically involves, not less.

Will she be a judicial conservative on the federal bench? I think so, based on personal observation of the way she behaved as a trial judge. My case posed no great policy questions and didn't require statutory interpretation. But watching a judge deal with counsel, and then with a jury, over significant periods of time tells one quite a bit about how the judge sees his or her own role in the system. And the best short-hand way I can describe Judge Elrod's judicial demeanor and temperament and self-concept would be "John Roberts-like," which will make perfect sense to those of you who watched much of Chief Justice Roberts' confirmation hearings (and is about the highest compliment I can bestow to a judge, for that matter).

She also reminds me quite a bit of another judge of my acquaintance whose track record went from Baylor to Harvard to Baker Botts to the Harris County District Courts and then beyond: the Hon. Thomas R. Phillips, long-time and recently retired Chief Justice of the Texas Supreme Court, who probably did more than anyone else to restore judicial conservatism and consequent national respect to that bench.

I had been concerned that Democrats might nevertheless try to run the clock out on her nomination. They did not, and to that extent, I will give them due credit for doing their jobs.

Congratulations, Judge Elrod. I wish you a long and productive career on the federal bench.

Posted by Beldar at 05:09 PM in Law (2007) | Permalink


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(1) VR made the following comment | Oct 6, 2007 11:29:28 PM | Permalink

Trial judges don't write opinions in Texas? Really?
In my state (Pa.), when any case is appealed, generally the trial judge writes an opinion, which then both sides (and the appellate court) use as their starting place.

Indeed, while the applicable rule (Pa. R.A.P 1925) does not command that trial judges write opinions in every case, they usually do, and when they don't the appellate court often sends it back and orders them to (so the appellate court can see why the judge ruled the way s/he did).

I've only practiced in Pa., but I assumed the procedures were not that different in other states. Guess I was wrong about that.

So when a case is appealed in Texas, the record is just certified and sent up without any written opinion from the judge?

(2) nk made the following comment | Oct 7, 2007 6:31:28 AM | Permalink

In response to VR,

Trial judges don't write opinions in Illinois, either. There are instances where they are obligated to make a certain record -- in a nutshell that they considered things that statute or precedent required them to consider in reaching their judgment -- but it is in a draft order (often drafted by the parties) or orally from the bench and taken down by the court reporter.

The appellate court always examines the entire record, using the applicable standard of review, and the trial judge's opinion is largely irrelevant, except in extreme cases where it is glaringly obvious from the record that the judge considered improper evidence or acted out of personal whimsy.

(3) Beldar made the following comment | Oct 7, 2007 8:02:22 AM | Permalink

VR, thanks for the comment and question, and nk, as always, thanks for adding your perspective!

I'm only admitted to practice in Texas and haven't made any study of this, but my impression is that opinion-writing may be more common among trial judges in the northeast than elsewhere. In New York, for example, there's an entire series of published casebooks devoted specifically to opinions from the "Supreme Court," which (confusingly to those of us from elsewhere) is New York State's trial bench. In Texas, by contrast, state trial court decisions don't have formal precedential value; one trial judge's rulings might be persuasive to another judge, but are in no way binding.

Texas state-court trial judges' decisions are reviewed on appeal in various different ways, depending on the kind of case, the way in which it was decided, and the kind of appeal. By far the most common situation would be one in which the trial judge has presided over a jury trial, with the jury acting as fact-finder. The record on appeal will typically include the judgment that the trial judge has signed on the basis of the jury's verdict, but that's typically a document originally drafted by counsel for the prevailing side, and rarely contains written rulings on subsidiary legal points that support its ultimate conclusion. The trial record will, of course, contain the judge's trial rulings on evidentiary and procedural matters, and it will contain the charge conference, which includes the parties' respective requests and suggestions for what questions and instructions should go into the court's charge to the jury, along with the trial judge's rulings on those requests and suggestions. Those rulings, in turn, typically reflect the trial judge's subsidiary legal rulings, and the record may or may not include oral discussion of the judge's thinking. For example, if the judge finds no ambiguity in a particular part of a contract, she may therefore refuse a proposed jury question asking the intent of the parties as to that part of the contract; and whatever final judgment she signs will reflect that finding, at least indirectly, in the statement of who wins and what relief they get. But it's the written proposed questions and instructions submitted by the parties, and the up-or-down rulings on them, and the ultimate relief granted in the judgment that are actually tested by the appellate courts.

Bench trials are different because in them, the trial judge acts both as fact-finder and decider of legal matters. The Texas Rules of Civil Procedure permit the parties to request written findings of fact and conclusions of law, but the parties are obliged to submit their own proposed versions of those, too, which trial judges may (and typically do) adopt in whole or part.

It's entirely possible in Texas state-court practice, then, for judges to process and decide hundreds of cases over dozens of years without ever drafting anything, but instead only signing (or revising, or declining to sign) proposed orders and judgments and findings/conclusions submitted by the parties. (Think of an umpire who stays at the plate calling balls and strikes, safe or out, but never chases down the fly balls and certainly never runs the base-path.)

And indeed, from the judges' standpoint, that's an effective resource allocation that permits them to spend much more time actually making decisions; the traditional view is that if the party whose motion they've just granted can't manage to write up a proposed order or judgment or set of findings/conclusions that, when signed, will stand up on appeal, that is just that party's own damned fault, and maybe they didn't deserve the ruling anyway.

In any event, it's the parties' responsibility (through their counsel) to preserve error -- which means, via one means or another, establishing on the record that the trial judge was asked at the right time to do the right thing for the right reasons, but didn't. And that's entirely possible to do even without the trial judge ever writing a written opinion as such.

nk's also correct to stress the "standard of review" on appeal. Generally, with respect to rulings on points of law, appellate courts are free to substitute their own views of the law anyway, and they're supposed to do so whenever possible to uphold trial court judgments, even when they see a dispositive legal argument that the trial judge missed or didn't fully grasp or didn't articulate. Similarly, with rulings that are subject to an "abuse of discretion" standard, the appellate courts are supposed to presume that even if the trial judge didn't say so, he or she resolved all of the credibility issues and made all the balancing of equities or other factors in the way that would support the ruling, whether that's all been elucidated or not. Conventional wisdom among old-school trial judges, then, is that the more you write or say, the more likely you are to be reversed on appeal — and that's almost indisputably true.

I can't go into any of the details about the pending appeal I have from Judge Elrod's court, but I will say this: While taking good advantage of the efficiencies of the traditional Texas practice whereby counsel do most of the drafting of instruments that judges sign, I'm confident that she reviews everything she signs, and confirms to her own satisfaction that it does what she intends, before putting her signature to it; and if something needed to be marked up, revised, or re-written from scratch to meet her standards, she'd either direct counsel how she wanted that done (before again reviewing it carefully), or she'd simply do it herself. She was at least as hands-on and involved in the work product that eventually bore her judicial signature as any other Texas state-court judge I've practiced before, and moreso than many.

Understand, too, in assessing this setup, that while they have "courtroom deputy clerks" from the district clerk's office to help them with filing, scheduling, and other clerical and administrative tasks, Texas state-court judges typically have no law clerks, with the occasional exception, in cities with law schools, of part-time student volunteers of limited usefulness in serious drafting. In cities like Houston and Dallas, they also tend to have substantially larger, but no less complex, dockets than their federal district court counterparts — who do typically have full-time law clerks who've finished law school and can indeed help with drafting. Judge Elrod was herself one such law clerk, having worked for Houston-based U.S. District Judge Sim Lake after graduation.

Another of the lies told about Judge Elrod by opponents of the Bush Administration was that on the Senate floor by Sen. Benjamin Cardin (D-MD), as quoted by the Chronicle article I've linked above, in saying that she has "no federal judicial experience [and] that she has no criminal experience." A large portion of Judge Lake's docket would have been criminal cases, and she'll bring to the Fifth Circuit a valuable perspective from up-close first-hand observation from that clerkship at the right hand of a highly respected federal judge. Cardin's comment (probably from a set of talking points furnished by someone like Nan Aron) only illustrates his own ignorance rather than any lack of qualifications on Judge Elrod's part.

The bench that Judge Elrod is about to join will multiply many-fold her time and opportunity for reading of briefs and records, thoughtful reflection and independent research thereupon, and then the drafting and revision of opinions. And while she'll still have a large and busy docket, she'll have three full-time law clerks chosen from among 2007's top law school graduates. It will be a new set of challenges for her, but I'm confident that she's well prepared for them and that she'll thrive in meeting them.

(4) VR made the following comment | Oct 7, 2007 8:21:34 AM | Permalink

Very interesting.
Pa. trial court opinions are generally not published, BTW--they are simply an aid to appellate review, and the only people who generally see them are the litigants and appellate court. (There is a reporter for some very few trial court opinions to be published, but that is quite rare, and no one reads them).

I agree, calling the trial court the "Supreme Court" in NY is insanely confusing. If you know the history, it makes some sense, but it still should be changed.

Regarding the actual issue here (Judge Elrod, about whom I know nothing at all)--I tend to agree with Chuck Schumer that senators should be honest about opposing nominations for purely political reasons. Its quite constitutional, and would inject more honesty into the process. Just like the president considers both objective qualifications and political views (and sometimes other political considerations), senators should own up to the fact that they do as well. I would rather see Dems (of whom I am one) say "this judge is qualified, but too conservative for me, so I vote no." (And the GOP was no better under Clinton, but I only use that as a shield against one-sided attacks--that's not an excuse for Dems to keep doing it now.)

(5) Beldar made the following comment | Oct 7, 2007 8:27:59 AM | Permalink

VR, I actually have no idea what Judge Elrod's personal politics are, other than what anyone might infer from the fact that having been appointed to a vacancy, she chose to run for re-election as a Republican. She may have a political track record I'm unaware of, or maybe either Gov. Perry or Pres. Bush or their proxies made some inquiries of her on that before her appointments (although I sort of doubt that). I'm much more confident that she's a judicial conservative based on my personal observation, and that's frankly what matters to me more than her personal politics, because it means her personal politics should remain as irrelevant as she can make them to any of the decisions she's called upon to make on the Fifth Circuit. I think she'll do her best, in other words, to honor the spirit of this quote from Chief Justice Robert's confirmation hearings:

"If the Constitution says that the little guy should win, then the little guy's going to win in the court before me," Roberts told senators. "But if the Constitution says that the big guy should win, well then the big guy's going to win because my obligation is to the Constitution."

(6) VR made the following comment | Oct 7, 2007 9:38:42 AM | Permalink

Beldar, I was making more of a comment on the process. It certainly looks like the libs don't like Elrod because they suspect she will make rulings they don't like.

Presidents choose judges based on this all the time, of course. Senators do too, I just wish they were honest about it and asserted their constitutional privilege to do so. (I know other people don't think the constitution permits senators to decide on that criteria--those people are wrong.) This is a matter both of crass political outcomes and judicial philosophy (which is the distinction I take you to make betweeen what you deem personal politics and "judicial conservatism".)

This is just a hobbyhorse of mine, I think congress has (over the course of the 20th century) ceded a lot of their legitimate authority to the President, and then has to make excuses like (to take a well-known example) "Judge Bork is not qualified" when they should have just said "we don't like him, too conservative for us, even though he is qualified." The senate had every right to take the latter approach with Bork, and I wish they had (or rather, I wish they had admitted that they had). The senate has every right to use whatever criteria they want in assessing judicial nominees, the constitution places no limits at all on "advice and consent." When the senate pretends that they are not using a legitimate power they have, they give legitimacy to the view that they do not have the power. This is bad for the country, IMHO.

But this has probably descended into "threadjack" territory, so I will have mercy on Beldar's bandwidth and shut my pie hole. Thanks for the blog, Beldar--always entertaining and insightful.

(7) Beldar made the following comment | Oct 7, 2007 9:58:33 AM | Permalink

Your comments are very welcome, VR, and thanks for the kind words as well.

(8) Rorschach made the following comment | Oct 8, 2007 3:22:11 PM | Permalink

I was called for jury duty in Judge Elrod's court back in the spring on a case concerning a nursing job placement service that imported Pakistani nurses and placed them in job openings, and I found her to be a breath of fresh air compared to other judges in other courtrooms. Voire Dire started promptly ON TIME. She addressed the prospective jurors personally and then a couple days after the case was concluded I received a letter personally signed (by her I presume, but certainly by a human) thanking me for my service even though I was not picked for the jury. that is the ONLY time I have ever been contacted by a judge and thanked for my service. That tells me that she still has the capacity to see the legal profession from the outside.

(9) nj made the following comment | Oct 8, 2007 8:19:45 PM | Permalink

There are three generations of a political family in Chicago the Axelrods/Elrods (Some kept the "Ax" some didn't). Their best known member was second-generation -- he was an Assistant State's Attorney in the 60's, Sheriff of Cook County for two decades and distinguished himself as a judge afterwards. They're hardened Democrats, though.

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