Judging Judges

Chief Justice John Roberts recently made headlines by rebuking President Trump for criticizing someone he called an “Obama judge.”  The target of the President’s anger was Judge Jon S. Tigar of the United States District Court for the Northern District of California who, according to the New York Times,  recently “ordered the administration to resume accepting asylum claims from migrants no matter where or how they entered the United States.”  Chief Justice Roberts replied that “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.”

Chief Justice Roberts is certainly right to praise the dedication of our federal judges and the independence of our judiciary, but he is wrong to deny that judges can, or should, be identified by the president who appointed them. Academic studies show patterns of presidential and judicial behavior which cannot be ignored.

One noteworthy pattern is the tendency of each president, regardless of party, to fill most judicial vacancies with members of his own party.  An academic study of the judicial appointments of presidents from Grover Cleveland through George W. Bush showed that, on average, a president appointed a member of his own party to a judgeship 91% of the time, with no president assigning less than 82% of his appointments to members of his own party.

Another pattern detected by academic studies cited in an edition of a textbook I use in my Elections and Political Parties course at Tarleton is the relationship between a federal judge’s party and his decisions.  Studies show that:

• Democratic judges are more likely than Republican judges to be liberal “on issues such as civil liberties, labor issues, and regulation;”
• Democratic judges are more likely to decide “in favor of the defendant in criminal cases, for the government in tax cases, for the regulatory agency in cases involving the regulation of business, and for claimants in workers’ compensation, unemployment compensation, and auto accident cases;” and
• “In recent redistricting cases, U. S. District Court judges have tended to uphold plans enacted by their party more than those enacted by the opposing party.”

Of course, these are general tendencies.  For each conclusion, there may well be exceptions to the general rule.  No judge takes directions from party headquarters.  Nobody can predict with complete accuracy how a federal judge will rule on a particular case.  Nonetheless, the bottom line is that who appoints whom to a federal judgeship may be quite important in determining how a given case may be decided, and that there may well be significant differences between an “Obama judge” or a “Clinton judge” and a “Trump judge.”  Indeed, this point has been made with crystal clarity by both Hillary Clinton and Donald Trump.  Secretary Clinton said, while running for president, that she would appoint nobody to the Supreme Court who might vote to overturn Roe v. Wade, while Candidate Trump said he would appoint justices who would do exactly that.

Moreover, knowledge that it matters whether Democrats or Republicans are appointed to the courts helps explain the bitter partisan fights between Presidents and the Senate, and between Democratic and Republican senators, which have become almost a constant since the 1980s.  Republican Senate Leader Mitch McConnell’s refusal to grant a hearing to Judge Merrick Garland, President Obama’s choice to fill the Supreme Court vacancy created by the death of Justice Antonin Scalia, and the bitter fight over Judge Brett Kavanaugh last summer are but the latest examples of the ongoing partisan war to control the Supreme Court.  So too are pledges by some Democrats to use their control of the House of Representatives to revisit the confirmation battles of both Justice Kavanaugh and Justice Clarence Thomas and determine whether either, or both, lied under oath and thereby committed a potentially impeachable offense.

Nobody seems to be arguing that this pattern of intense partisan combat over federal judgeships is healthy or desirable, but few seem to have any ideas which might tone down or dial back the bitterness.  My personal solutions—imposing term limits on federal judges while encouraging more efforts to amend the Constitution to preserve public policies from judicial review—show no sign of gaining traction.  So perhaps we’re doomed to continuing partisan warfare. 

But should there ever develop a consensus that efforts should be made to reduce the degree of partisanship and with it the degree of bitterness, character assassination, and other forms of dishonesty in the judicial selection process, a good first step to take might be the recognition that who makes the appointments, given the relationship among president, party, and judicial decision, really matters.  In other words, one must recognize that regardless of what our current Chief Justice says, there are “Obama judges,”  “Clinton judges,” “Bush judges,” and “Trump judges.”  Accepting the reality of partisanship rather than the myth of nonpartisanship is not sufficient, but it is nonetheless necessary. 

Malcolm L. Cross has lived in Stephenville and taught politics and government at Tarleton since 1987. His political and civic activities include service on the Stephenville City Council (2000-2014) and on the Erath County Republican Executive Committee (1990 to the present).  He was Mayor Pro Tem of Stephenville from 2008 to 2014.  He is a member of St. Luke’s Episcopal Church and the Stephenville Rotary Club, and does volunteer work for the Boy Scouts of America. Views expressed in this column are his and do not reflect those of The Flash as a whole.