Lawyers, like children, complain when things are unfair. Children complain to their parents. Lawyers complain to appellate judges. Parents respond, “Life’s unfair,” which acknowledges the inherent unfairness in life, but does not repair the unfairness. Complaints in the legal world substitute the word “due process” for “fair.” Courts, when dealing with these due process claims, do not acknowledge unfairness and often respond, “What you are complaining about did not violate due process.” Same result.

Practitioners before any adjudicative body know that a lot depends on who you get as your “decider.” Practitioners know the result is often a function of whom your judge is. In appellate practice, it is not unusual to know the result based on who the panel of judges hearing the case is composed of. In the immigration court setting, you often know what is going to happen based on the judge you get. On appeal, you can often guess on your chances of success based on who hears your case. This is not always so. There is enough variation around the mean to keep one guessing and hoping. Sometimes the “worst” judge will give you the “best” result and the “best” judge will give you the “worst” result, but more often, you know what is going to happen in advance.

(more…)