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Republicans in the Senate are threatening to “go nuclear” this week over the judicial selection process. If Democrats insist on filibustering to avoid votes to confirm nominees to the federal courts, then the Republican majority may declare that the filibuster rules do not apply to judicial nominations. This potential conflagration relates largely to whether judges are anti-abortion or pro-abortion rights or hold beliefs that are purportedly outside of the mainstream. Although these issues yield tantalizing headlines and provide fodder for screaming matches on cable television, they in fact have little to do with the day-to-day job of judging. Ask any lawyer who defends corporations to name the attributes of a “bad” judge. Virtually no one’s first concern would be the judge’s view on abortion or whether the judge held a position that was out of the mainstream. Nor, within broad limits, would anyone be concerned about whether the judge was generally liberal or conservative. Rather, a judge who makes life hard for corporate defendants is likely to have one or more of three characteristics: laziness, dim-wittedness or cowardice. A lazy judge is the plaintiff’s best friend, because that judge would rather play golf than rule on pending motions. As motions go undecided, the costs of discovery mount, the trial date approaches and the defendant is coerced to settle to avoid ever-increasing defense costs and the uncertainty of trial. A dim-witted judge is also effectively pro-plaintiff. Once a lawsuit is filed-which of course does not require any action by a judge-the defendant’s task is to make the lawsuit go away. The defendant thus asks a judge to rule on a motion to dismiss, for summary judgment, or to exclude witnesses who will support the plaintiff’s theory at trial. A dim-witted judge, unable to understand the substance of these motions, is unlikely to grant relief. The lawsuit thus proceeds toward trial, and the defendant may again find itself forced to settle. Finally, a cowardly judge also poses problems for the defense. If the judge grants a dispositive motion, then the lawsuit is over, and the plaintiff will probably appeal. On appeal, there is a chance that the judge’s ruling will be reversed, which some trial judges view as a mark of shame. If, on the other hand, the judge denies the dispositive motion, then there will be no immediate appeal. Indeed, there is unlikely ever to be an appeal, because virtually all cases settle before trial, which forecloses any chance of appeal. A cowardly judge-one who denies dispositive motions to avoid possible reversal on appeal-is thus, by virtue of how the appellate process works, a pro-plaintiff jurist. Competence should be the key If conservatives-or business interests, or others-wanted to give corporate defendants a fairer day in court, conservatives would stop quibbling about whether judges are pro-abortion rights or anti-abortion. Rather, conservatives would urge the appointment (or election) of judges who are industrious, smart and courageous. Those judges-whether liberal or conservative, “pro-choice” or “pro-life”-would give defendants a fair shake. In addition to helping business interests, appointing industrious, smart, courageous judges also makes for good policy and good politics. As a matter of policy, society should have the most industrious, smartest, most courageous judges available. And, as a matter of politics, it would be difficult for anyone to oppose the appointment of a judge because the nominee was too competent. Most fair-minded lawyers, including fair-minded defense lawyers, would probably be happy to litigate cases before politically liberal judges, so long as those judges were industrious, smart and courageous. If conservatives would stop their political posturing and instead simply try to improve the quality of the American judiciary, they would be doing both business interests and America itself a favor. Mark Herrmann is a partner in the Cleveland office of Jones Day and an adjunct professor of law at Case Western Reserve University School of Law.

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