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 Obama administration’s enforcement of the Affordable Care Act.
The U.S. Court of Appeals for the District of Columbia Circuit ruled 2 to 1 that the Internal Revenue Service acted illegally in approving subsidies for people who obtained their health insurance through a federal exchange. Strictly construing language in the Affordable Care Act, the majority said that subsidies were available only to customers who buy their insurance through exchanges established by states. On the same day, the U.S. 4th Circuit Court of Appeals in Richmond, Va., upheld the IRS ruling, looking beyond the language of the law to its overriding purpose of ensuring health coverage for everyone.
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 Bill Clinton, in a temporary recess appointment, and by Republican George W. Bush.)
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 Senate Democrats triggered the “nuclear option” and abolished the filibuster for most nominations. (The headline on Politico’s story was: “How Obama’s court strategy may help save Obamacare.”)
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 Republicans.
Granted, district judges tend to be less predictable ideologically than appeals court judges, because they are initially chosen not by the White House but by home-state senators and because most of their work involves presiding at trials rather than interpreting the Constitution. But even at the appeals court level, knowing the party of the president who nominated a judge isn’t an infallible guide as to how that judge will rule in a case with partisan or ideological overtones. (And remember: Federal judges aren’t the creatures only of the presidents who nominate them. They also are confirmed by the Senate, often by bipartisan majorities. Gregory was confirmed on a 93-1 vote.)
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 John G. Roberts Jr. saved the law’s individual mandate by ruling that it was a valid use of Congress’ taxing power.
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. Dianne Feinstein (D-Calif.)” Or the R in “Rep. Paul Ryan (R-Wis.)” Readers and reporters need to remember that.
Follow Michael McGough on Twitter @MichaelMcGough3.