Judges likely to side with party who named them
Liberal appointees rule against Trump Leftist bias seen in rater of Trump judiciary picks
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.”
Leonard Steven Grasz was nominated to the 8th U.S. Circuit Court of Appeals.