Judges likely to side with party who named them

Lib­eral ap­pointees rule against Trump Left­ist bias seen in rater of Trump ju­di­ciary picks

The Washington Times Weekly - - Politics - BY S.A. MILLER AND STEPHEN DI­NAN BY ALEX SWOYER

Pres­i­dent Trump wasn’t wrong last week when he pointed to an ob­vi­ous ide­o­log­i­cal gap be­tween judges nom­i­nated by a Demo­cratic pres­i­dent ver­sus those nom­i­nated by a Re­pub­li­can — but le­gal ex­perts said his mis­take was in cou­pling it with such naked crit­i­cism of the ju­di­ciary.

A Wash­ing­ton Times anal­y­sis of sig­nif­i­cant ju­di­cial de­ci­sions on im­mi­gra­tion cases over the last two years shows that 53 of the 54 Demo­cratic judges who is­sued or signed onto opin­ions in im­mi­gra­tion cases ruled against the Trump ad­min­is­tra­tion’s get-tough ap­proach.

By con­trast, among GOP-ap­pointees to the fed­eral bench, 15 judges have backed the ad­min­is­tra­tion in im­mi­gra­tion cases and 13 have not.

An ear­lier Times anal­y­sis of rul­ings in Oba­macare-re­lated cases found a split just as strik­ing. More than 90 per­cent of Demo­cratic-ap­pointed judges backed the Af­ford­able Care Act, while nearly 80 per­cent of GOP-nom­i­nated judges found le­gal fault with the 2010 law and the way the pre­vi­ous ad­min­is­tra­tion car­ried it out.

Le­gal schol­ars say it’s not so much the party la­bels, but the com­pet­ing ju­di­cial philoso­phies that are play­ing out in those num­bers — though they say most judges do try to live up to their pro­fes­sion as in­de­pen­dent ar­biters of jus­tice.

“Even though most Amer­i­cans rec­og­nize that judges have po­lit­i­cal views, there is a ba­sic as­sump­tion among many or most Amer­i­cans that judges ul­ti­mately will place the rule of law ahead of pol­i­tics,” said Wil­liam G. Ross, a pro­fes­sor of law and ethics at Sam­ford Uni­ver­sity in Birm­ing­ham, Alabama.

He said pres­i­dents, too, have gen­er­ally avoided crit­i­ciz­ing the courts for fear of an­tag­o­niz­ing vot­ers who would con­clude a broad­side was in­tended to un­der­mine re­spect for the rule of law or to in­ter­fere with ju­di­cial in­de­pen­dence.

Mr. Ross said Mr. Trump broke tra­di­tion with his com­plaints last week — and Chief Jus­tice John G. Roberts Jr.’s re­buke was war­ranted.

“Although I gen­er­ally be­lieve that both pres­i­dents and jus­tices should scrupu­lously re­frain from crit­i­ciz­ing one an­other, I be­lieve that Chief Jus­tice Roberts’ state­ment was jus­ti­fied in the wake of Pres­i­dent Trump’s un­prece­dented re­marks,” he said.

Mr. Trump was in­censed last week after a rul­ing by U.S. Dis­trict Judge Jon S. Ti­gar in Cal­i­for­nia that blocked the pres­i­dent’s get-tough ap­proach to­ward im­mi­grants liv­ing in the U.S. il­le­gally abus­ing the asy­lum sys­tem. Mr. Trump called him an “Obama judge” and blasted the broader ju­di­cial 9th Cir­cuit, which cov­ers the fed­eral courts on the coun­try’s west coast, say­ing he doesn’t get a fair shake from them.

That drew an un­con­ven­tional re­tort by Chief Jus­tice Roberts, who in­sisted the ju­di­ciary is in­de­pen­dent and doesn’t di­vide along pres­i­den­tial lines.

She’s not a sen­a­tor, but Cyn­thia Nance plays an enor­mous role in shap­ing the de­bate over some of Pres­i­dent Trump’s ju­di­cial picks.

Ms. Nance, for­mer dean of the Uni­ver­sity of Arkansas School of Law, han­dles the Amer­i­can Bar As­so­ci­a­tion’s ju­di­cial rat­ings for nom­i­nees to fed­eral courts in North and South Dakota, Ne­braska, Min­nesota, Iowa, Mis­souri and Arkansas, which make up the fed­eral 8th Cir­cuit.

The ABA’s role is one of the more opaque parts of the process, but Re­pub­li­cans are push­ing it into the light, ac­cus­ing her of al­low­ing per­sonal bias, par­tic­u­larly a fealty to abor­tion rights, to color her rat­ings.

The ABA re­cently rated Jonathan Kobes, a Trump pick to sit on the 8th U.S. Cir­cuit Court of Ap­peals, as “not qual­i­fied.” It said he didn’t have a long enough record of le­gal writ­ings.

A year ear­lier, Ms. Nance led the ABA re­view com­mit­tee that rated an­other Trump pick, Leonard Steven Grasz, as “not qual­i­fied.” Judge Grasz would win con­fir­ma­tion, but not be­fore ac­cus­ing the Nance-led panel of in­ap­pro­pri­ate ques­tions on abor­tion and re­fer­ring to him as “you guys” — which he took as a pe­jo­ra­tive ref­er­ence to Re­pub­li­cans.

To Se­nate Ju­di­ciary Com­mit­tee Chair­man Chuck Grass­ley, Iowa Re­pub­li­can, the treat­ment has gone over­board.

He said Ms. Nance’s left-lean­ing ac­tivism dates back more than a decade, in­clud­ing op­pos­ing Jus­tice Sa­muel A. Al­ito Jr.’s con­fir­ma­tion de­spite the ABA’s rat­ing of him as “unan­i­mously well qual­i­fied.”

She has retweeted com­ments on Twit­ter mock­ing the late Jus­tice An­tonin Scalia and his view of orig­i­nal­ism, the Iowa Re­pub­li­can said.

In ad­di­tion, the law pro­fes­sor wrote a let­ter to the Obama ad­min­is­tra­tion

“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,” the chief jus­tice said in a state­ment is­sued by the Supreme Court.

The Times anal­y­sis shows, how­ever, that there is a clear break in ju­di­cial out­comes based on which pres­i­dent did the ap­point­ing. And Chief Jus­tice Roberts has been a part of that.

In the travel ban case, by the time the courts got to rul­ing on Mr. Trump’s third, cur­rent ver­sion, the di­vi­sions were clear. Of the 27 judges who is­sued or joined rul­ings at the dis­trict, cir­cuit or Supreme Court lev­els, 19 were Demo­crat ap­pointees. Ev­ery one of them ruled against the ban.

All of the eight Re­pub­li­can nom­i­nees, mean­while, backed the pres­i­dent’s pow­ers to is­sue the ban — in­clud­ing Chief Jus­tice op­pos­ing le­gal pro­tec­tions for re­li­gious or­ga­ni­za­tions such as the Lit­tle Sis­ters of the Poor, which chal­lenged Oba­macare’s con­tra­cep­tive man­date.

The ABA de­clined to pro­vide a state­ment about Ms. Nance, and she didn’t re­spond to a re­quest for com­ment.

But in writ­ten tes­ti­mony to the com­mit­tee sub­mit­ted last No­vem­ber after the back­lash over her in­ter­view with Mr. Grasz, she ac­knowl­edged dis­cussing par­tial-birth abor­tion with the nom­i­nee, who wrote a 1999 law re­view ar­ti­cle on the is­sue.

“Dur­ing my in­ter­view with Mr. Grasz, we dis­cussed a wide range of sub­jects, in ac­cor­dance with the pro­ce­dures of our com­mit­tee,” she said in her writ­ten state­ment, adding that she re­ceived com­ments from Mr. Grasz’s peers, which made her con­cerned about his ju­di­cial tem­per­a­ment. “I con­ducted all in­ter­views pro­fes­sion­ally and ob­jec­tively with the sole pur­pose of gain­ing a full un­der­stand­ing of the nom­i­nee,” she said.

Ms. Nance was not the only eval­u­a­tor of Mr. Grasz, as an­other col­league on the com­mit­tee also wrote a re­port. He was the one who sparred with Mr. Grasz over the use of “you guys.”

The two re­ports were sub­mit­ted to the Roberts, who wrote the ma­jor­ity opin­ion for the court, which was in­deed split 5-4 along pres­i­den­tial ap­point­ment lines.

Cases deal­ing with sanc­tu­ary city laws are an ex­cep­tion. Both Demo­crat- and Re­pub­li­can-ap­pointed judges alike have ruled il­le­gal the Trump ad­min­is­tra­tion’s at­tempts to crack down on ju­ris­dic­tions that refuse co­op­er­a­tion with de­por­ta­tions.

Cases in­volv­ing the Obama-era De­ferred Ac­tion for Child­hood Ar­rivals pro­gram, which al­lows im­mi­grants who came to the U.S. il­le­gally as chil­dren to stay in the coun­try, are mixed, with most Re­pub­li­can judges sid­ing with the Trump ad­min­is­tra­tion, but one judge named by Pres­i­dent Ge­orge W. Bush rul­ing against the cur­rent ad­min­is­tra­tion.

And the po­lit­i­cal di­vid­ing line re­turns on the case in­volv­ing im­mi­grant teen girls who were in the U.S. il­le­gally and in fed­eral cus­tody de­mand­ing that the gov­ern­ment fa­cil­i­tate their abor­tions. Ev­ery Demo­crat-ap­pointed judge has ruled in 15 mem­bers of the ABA’s Stand­ing Com­mit­tee for re­view, dis­cus­sion and a vote.

Max Brant­ley, se­nior ed­i­tor for the Arkansas Times and an ac­quain­tance of Ms. Nance, said she is a straight shooter.

“If she found ground for crit­i­cism of a ju­di­cial nom­i­nee, I’m con­fi­dent it’s rooted in a care­ful anal­y­sis of the facts,” he said.

Ms. Nance also has led eval­u­a­tions that rated two other Trump ju­di­cial nom­i­nees “well qual­i­fied,” which to her de­fend­ers sig­nals she is not re­flex­ively anti-Trump.

Mr. Kobes’ nom­i­na­tion cleared the Ju­di­ciary Com­mit­tee on a party-line vote. In the full Se­nate, though, he is one of more than 30 ju­di­cial nom­i­nees await­ing ac­tion by the end of the year.

Democrats are in­tent on slow-walk­ing the picks, while ap­prov­ing Mr. Trump’s ju­di­cial nom­i­nees is Re­pub­li­cans’ top pri­or­ity for the next two years, when a di­vided Congress leaves them with lit­tle hope of progress on big-ticket is­sues.

The ABA’s role in ju­di­cial picks dates to 1953, and it doles out rat­ings of “well qual­i­fied,” “qual­i­fied” and “not qual­i­fied,” based on a nom­i­nee’s in­ter­view, le­gal writ­ings and con­ver­sa­tions with the nom­i­nee’s peers.

Most pres­i­dents have fol­lowed a prac­tice of wait­ing for an ABA eval­u­a­tion be­fore nom­i­nat­ing a can­di­date.

Pres­i­dent Ge­orge W. Bush halted that prac­tice in 2001, and Pres­i­dent Obama re­in­stated it. Mr. Trump has once again ditched it, draw­ing praise from con­ser­va­tives who say the ABA’s lib­eral lean­ings are too deep to ig­nore.

“The role of the courts has been seen as more and more po­lit­i­cal,” said Curt Levey, pres­i­dent of the Com­mit­tee for Jus­tice. “As soon as it was clear that the se­lec­tion of judges in­volved a lot of ide­ol­ogy, it be­came un­ac­cept­able [that] the ABA, which is very lib­eral, should play such a prom­i­nent role.”

For con­ser­va­tives, Ms. Nance’s ac­tivism is a symp­tom of the larger prob­lem within the ABA. fa­vor of the im­mi­grant teens, while ev­ery GOP ap­pointee has sided with the Trump ad­min­is­tra­tion.

“No se­ri­ous ob­server doubts that there are ide­o­log­i­cal dif­fer­ences among judges that in­flu­ence de­ci­sion-mak­ing on some hot-but­ton cases, and that those dif­fer­ences of­ten cor­re­late with party,” said Ge­orge Ma­son Uni­ver­sity law pro­fes­sor Ilya Somin.

How­ever, he faulted Mr. Trump for this par­tic­u­lar at­tack, say­ing he didn’t see proof of bias and said the pres­i­dent has made a habit of at­tack­ing the le­git­i­macy of ju­di­cial re­view.

“Trump’s com­ments might have caused less con­tro­versy if they were not part of a long string of in­ap­pro­pri­ate at­tacks on the ju­di­ciary,” Mr. Somin said. “Pre­vi­ous pres­i­dents have oc­ca­sion­ally made du­bi­ous state­ments about the court’s [such as Pres­i­dent] Obama’s no­to­ri­ous at­tack on Cit­i­zens United dur­ing the State of the Union, but Trump is un­usual for do­ing so with such fre­quency.”

AS­SO­CI­ATED PRESS

Leonard Steven Grasz was nom­i­nated to the 8th U.S. Cir­cuit Court of Ap­peals.

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