Panel Eyes the Politicization of Litigation

The United States in recent years has seen a significant uptick in the impact of politics and public pressure on the day-to-day practice of litigation, a group of distinguished litigators told an audience of fellow Law School graduates during a Reunion 2012 panel discussion.

Political and public pressures have impinged in varying degrees on numerous aspects of the American litigation process, according to the featured speakers for the panel discussion, “Issues in Litigation: The Politicization of Litigation in the United States.”

“This politicization has had an impact on the prosecutorial process and on judges, who are only human,” said panelist Andrew Levander ’77, a prominent white-collar defense lawyer and chairman of Dechert in New York City. “You see this in a wide variety of cases—and not just criminal prosecutions.”

Levander joined fellow panelists Roberta “Robbie” Kaplan ’91 and Edward Soto ’98 in the lively discussion, which was moderated by Judge Paul G. Gardephe ’82 of the U.S. District Court for the Southern District of New York. As an example of worrisome public pressure, Levander cited prominent national media outlets calling for criminal prosecutions of executives amid the collapse of major financial institutions in recent years—regardless of whether sufficient evidence exists to pursue these prosecutions.

America’s polarized politics have clearly impacted litigation and the courts, said Kaplan, a partner at Paul, Weiss, Rifkind, Wharton & Garrison in New York City.

“The problem is the atmosphere that we live in generally,” Kaplan said. “We live in a world of instantaneous news, of Twitter, of cable news that, in my opinion, is not really news. It’s not unbiased. And the politicization of almost everything in doesn’t just affect litigation and the courts, unfortunately, it affects our entire national life.”

With increased political polarization in the United States, the politics of a case “is a factor that any good litigator needs to take into account,” said Soto, a partner at Weil, Gotshal & Manges in New York City.

“There are a number of consultants at major law firms whose job it is to give you the background information you need to be able to—for lack of a better phrase—understand or play that piece of the puzzle,” Soto added.

Florida Governor Rick Scott’s recent decision to purge noncitizens from the state’s voter registration rolls reflects how litigation can be used to achieve political ends, Soto said. The initiative violates a federal law forbidding the purge of voter rolls within 90 days of an election, and Scott’s decision to let the deadline pass before launching the initiative—a move that clearly courted litigation—was likely intentional and dictated by political motivations, according to Soto. “He has lawyers who can count,” he said.

The panel addressed other areas of the litigation process that have been influenced by the political mood nationwide, including the role of money in state supreme court elections—an issue raised by one alumnus in the audience during a question-and-answer period.

Kaplan noted that she had recently spoken at a conference convened by the chief justices of state supreme courts who vehemently disapproved of the surge of money poured into increasingly politicized elections.

“They find it of enormous concern and enormously distressing,” Kaplan told the audience, adding that every justice she spoke with at the conference would prefer a judicial appointment system in their respective states.

Kaplan cited the case of three Iowa Supreme Court judges who were voted out of office in 2010 after ruling to legalize same-sex marriage in the state the previous year. The justices were ousted when conservative groups and opponents of same-sex marriage waged a well-funded campaign against their reelection. Such political pressure on the judiciary limits the pool of gifted individuals who are willing to serve on the bench, Levander added. “With the whole notion of elections and judges, you’ve already [excluded] a terrific cadre of people who don’t think of themselves as politicians but rather as potential jurists,” he said.