Larry Cunningham is pondering NY Governor Andrew Cuomo's search for judges and opines that:
The Governor may prefer to appoint judges with liberal political, religious or social views without regard to other factors, such as a judge’s attitudes toward business. ... Yet selections should be guided by the public interest, which may mean using broader criteria. ... Given New York’s role as a leading center of international commerce, however, there is a good case that the public interest calls for judges who understand the needs, values and realities of business.
When business people make contracts in New York, they want to know that the courts will uphold them as written and not rewrite them based on a judge’s notions of what is good for the parties. When corporations are formed in the state, entrepreneurs need flexibility and deference without the fear that courts will second-guess how they organized their companies or their business judgments. Judges who understand such business realities reinforce New York’s appeal as a commercial center and may be classified as “pro-business.”
Critics of the Supreme Court have politicized the concept by associating it with conservative thought: Republican justices are portrayed as pro-business, Democrats anti-business. Such an environment begs the question whether there is such a thing as a liberal judge who is also pro-business.
Larry ticks off some historical examples of such judges:
Leading examples are former Chief Judges Stanley Fuld and Judith Kaye. Fuld was a progressive with Dewey-Republican leanings; Kaye is a Democrat with practicality and common sense. Fuld wrote an influential opinion (Walkovsky) upholding limited liability for corporate shareholders even when a business was structured for that sole purpose. Kaye wrote the important opinion (Levandusky) that applied the deferential business judgment rule to decisions made by the boards of co-operative homeowners’ associations.
Turning to today, as Larry notes, Justice Stephen Breyer is relatively pro-business for a SCOTUS liberal. I would add the Democrats on the Delaware courts, such as Leo Strine, as additional examples.
The question is important on a national level. President Obama likely will get the chance to make at least one more Supreme Court nomination in his new term. Given the fragile state of the American economy, he would be well advised to look for candidates who are socially liberal but pro-growth, pro-market, pro-business who will be inclined to use the law to promote wealth creation rather than wealth transfer or destruction.
