Over the last few months I've been engaged in a friendly argument with some other journalists about what I see as a worrying trend: the tendency of reporters (and others) to treat federal judges as if they were partisan politicians. This takes the form of reflexively identifying a judge in a newsworthy case by prominently mentioning which president appointed him.
This has been true of stories about the wave of judicial decisions striking down bans on same-sex marriage. It also was the case Tuesday when two federal appeals courts reached conflicting rulings about a key regulation in the
The U.S. Court of Appeals for the District of Columbia Circuit ruled 2 to 1 that the
Most newspapers, including the Los Angeles Times, reported that the two judges in the majority on the D.C. Circuit were appointed by Republican presidents, whereas all three judges on the 4th Circuit were appointed by Democratic presidents. (Actually, the author of that court’s opinion, Judge Roger Gregory, was appointed by both Democrat
It was also widely noted that if the administration succeeded in having the full D.C. Circuit review the three-judge panel’s decision, Democratic appointees would have a 7-4 majority on that larger bench. Three of the Democratic judges are Obama appointees who were confirmed after
I don't object to reporting any of these details. The problem is that some readers are likely to assume that a "Republican" judge is just as predictably partisan as a Republican senator or member of the House.
That’s just not the case. Take the decisions on same-sex marriage. This is from a new report by the liberal Alliance for Justice: “Of the 15 pro-same-sex marriage rulings at the district court level, six (or 40%) have been issued by Republican-appointed judges, including one judge appointed by President George W. Bush. Eight rulings were issued by Democratic appointees, including four judges appointed by President Barack Obama.” Yet support for same-sex marriage among politicians is far stronger among Democratic politicians than among
Granted, district judges tend to be less predictable ideologically than appeals court judges, because they are initially chosen not by the
Over time, Republican-appointed judges and Supreme Court justices may well favor conservative interpretations of the law, and Democratic appointees liberal ones. That stands to reason given the philosophical preferences of the presidents who nominate them. But most judges are neither robots nor political hacks. And there are plenty of examples of judges with very high partisan or ideological profiles ruling in unpredictable ways.
Janice Rogers Brown, a former California Supreme Court justice, is a George W. Bush appointee to the D.C. Circuit widely viewed by Democrats as a conservative extremist. Yet Brown wrote the opinion upholding a federal law limiting the total amount an individual could contribute to federal election campaigns. (That ruling was overturned by the Supreme Court.) Republican-appointed judges have ruled both for and against challenges to the Affordable Care Act. Chief Justice
Whether a judge in a headline-making case was nominated by a Republican or a Democrat is a fact, but it’s not the same sort of fact as the D in “Sen.