The Big Short in the Federal Courts

I recently saw an unsettling movie, The Big Short, about the blatant fraud and corruption on Wall Street  that led to the  global economic collapse and the.Great Recession.

Like many film goers, I felt deeply troubled about the Titanic-sized failure of the American government to protect ordinary Americans from predatory behavior and  criminality by Wall Street bankers and brokers.  But later my thoughts turned to another failure that  is currently being ignored by American government and the press, one that I see as an attorney who writes about  the law and workers who are victims of abuse and discrimination in employment.

There has been undisputed and powerful evidence for years that the federal court system, like America’s  financial system, operates to benefit powerful moneyed interests at the expense of ordinary American workers.  A major indicator of this trend is that federal courts routinely dismiss employment discrimination lawsuits at a far higher rate than other types of business lawsuits.

My book, Betrayed: The Legalization of Age Discrimination in the Workplace, painstakingly documents how the U.S. Congress and  Supreme Court have made it inordinately difficult for workers to prevail in an age discrimination lawsuit.  The Age Discrimination in Employment Act of 1967 ia weak and riddled with loopholes compared to Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, sex, religion, national origin and color. The U.S. Supreme Court issued a completely unnecessary ruling in 2009 requiring that age discrimination victims  prove a far higher level of causation than is required under Title VII.  A proposed federal law that would fix the Court’s disastrous ruling has languished in a Congressional committee for six years.  Congress and the Court have legalized discrimination in employment based on age that would be illegal if the victim wore a hijab or hailed from Zimbabwe or Yemen.

At one point last spring, I attempted to contact the Judicial Conference of the United States, a 16-member body (with no citizen representative) that ostensibly runs the federal court system. I wanted to point out that discriminating against employment discrimination victims is tantamount to actual discrimination. I found the Conference’s web site but it contained no contact information. A spokesperson for the Administrative Office of the U.S. Courts (AOC)  suggested that I send my correspondence to the federal circuit court in my jurisdiction, which has a seat on the Conference body.  In exasperation, I submitted  an “open letter” to whom it might concern requesting legal reform via a web form on the AOC web site. I have concluded, rightly or wrongly, that the “leadership” of our federal court system is unapproachable.

In the movie, The Big Short, some savvy observers figured out the housing market was about to collapse and they found a way to make money on the collapse.  It seems likely to me that one day the “bubble” surrounding the federal court system will burst.  Just as there was almost universal faith in the housing market, Americans historically  have shown a high degree of trust in the courts.  That trust is eroded every time the court permits  unscrupulous employers to use the legal system to deny workers respect, dignity and fundamental fairness.

Trust is lost when courts permit employers to use the legal system as a weapon against American workers.

Meanwhile,  President Barack Obama  encouraged age discrimination in hiring when he signed an executive order in 2010 that permits federal agencies to bypass older workers and hire “recent” graduates and  U.S. Labor Secretary Thomas Perez earlier this year endorsed a private initiative by America’s largest corporations that openly discriminates against older workers. The federal government is the nation’s largest employer.

All of this  is happening in plain sight but it has gone largely unreported by the tattered shreds of what remains of America’s once vigorous media.  (I may sound a bit cynical on this score because the 18th richest man in the world, Sheldon Adelson,  a casino operator and major Republican donor who owns a free newspaper in Israel, recently secretly purchased  Nevada’s largest newspaper and immediately began testing the limits of journalism ethics.)

Like the housing market bubble, the bubble in the federal court system is attributable in large part to inattention, neglect and failure of accountability.

Members of Congress curry favor with and are beholden to their biggest campaign donors –   multi-national corporations and big business. Virtually all  federal judges who are appointed by Congress are attorneys who spent their careers representing powerful  big money interests, not the workers who toil on their behalf.  This is not a diversity issue – Supreme Court Justices Clarence Thomas and Sandra Day O’Connor have  authored some of the most damaging Court opinions with respect to workers’ rights.

Moreover, federal judges are appointed for life as long as they demonstrate good behavior. But what is bad behavior?  Even the most lazy, injudicious, ignorant, incompetent and biased federal jurists have virtually unassailable job security. As long as they want to continue collecting their six-figure salary, they do.  In many ways, the federal judiciary is run more like an exclusive club than a public agency that wields tremendous power over the lives of all Americans.

There is a critical need for judicial independence but …  throughout U.S. history only eight federal judges have been forcibly removed from office. The most recent case was in 2010 when G. Thomas Porteous, Jr., of the U.S. District Court for the Eastern District of Louisiana, was removed from office after he was impeached by the U.S. House of Representatives  for accepting bribes and making false statements and convicted by the U.S. Senate. The concept of judicial independence becomes absurd  in a closed system that operates essentially without accountability. The federal judiciary must ask Congress once a year to approve their budget but this is not the same as real oversight. Where is the evidence of self-policing in the federal judiciary? Why aren’t there any citizen representatives on the Judicial Conference of the United States?

The blatant fraud  in the financial sector chronicled in The Big Short led to the loss of eight million jobs, an unprecedented rate of home foreclosures, the disappearance of investments and retirement savings and, perhaps most importantly, the loss of a sense of security that Americans once felt as citizens of the most affluent nation in the world.  The movie ends with a photograph of  one hapless banker who  is described as the only individual who was successfully prosecuted for the fraud that  led to a world-wide economic suffering of incalculable proportions.  Presidential candidate Bernie Sanders this week told a packed auditorium in Reno, NV, that the banks and investment firms that were bailed out by taxpayers because they were too big to fail  are even bigger today. He received a thunderous ovation when he declared that the banks must be broken up.

It’s hard to measure the damage that is being done by the failure of America’s three branches of U.S. government to follow their mandate under the U.S. Constitution and insure equal justice for all.  It is inevitable that Americans who once trusted the courts and the legal system will one day recognize that it is biased in favor of power and privilege, like a greedy casino that is rigged for the house.  This is already happening.

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