Are judges ideological partisans, or impartial umpires?

October 31, 2022 8:27 am

Chief Justice John Roberts likened judges to baseball umpires, free of partisan or ideological agendas. Photo by Getty Images.

Former President Trump has been uncharacteristically quiet about the various unfavorable judicial rulings in the Mar-a-Lago documents litigation. His unusual reticence conflicts with his penchant for attributing litigation setbacks to the partisan-connection of judges who preside over them. He’s referred to some as “Obama” judges, implying that their decisions are based on ideology and political considerations, rather than neutral application of the law.

His remarks have been criticized  by the judicial establishment, led by Supreme Court Chief Justice John Roberts, who refuted one of Trump’s bleats by a rare public declaration: “We do not have Obama or Trump judges, or Bush judges or Clinton judges.” The chief’s strong rebuke parallels remarks he made  in his confirmation hearing in 2006, when he memorably stated that judges “are like umpires — neutrally making decisions.”

But the chief’s description was on shaky ground when uttered and has become even less credible since. 

The ruling last month by Judge Aileen Cannon in Florida — appointing a so-called special master to assess governent documents while temporarily halting the Trump criminal investigation — should dispel any lingering illusion that judges “are like umpires,” making decisions as if they were automatons.

Roberts’ famous but fatuous metaphor has been repeatedly parroted in less vivid terminology by some of his conservative court cohorts. But it was always a myth, and the Mar-a-Lago matter reflects that reality.

The Labor Day shot by Cannon — a post-2020 election Trump appointee — seemed  to deviate from existing law. It’s unsupported by legal precedent, imbued with hyperbolic speculation and blesses the man who appointed her with unwarranted empathy for the “stigma” and “reputational damage” of a criminal investigation.  

It happens to be yet another high-profile pro-Trump ruling by a Trump-appointed Florida federal judge. A few months ago, another of his appointees — a Tampa jurist with no prior litigation experience and scant qualifications except ultra-conservative credentials — overturned the Biden administration’s COVID protocols affecting airlines and the transportation industry. The judge, Kathryn Mizelle — also a late 2020 Trump appointee — bought hook-line-and-sinker the arrangements advanced by Trump acolytes condemning government attempts to rein in the pandemic.

They are among the 245 members of the federal judiciary appointed by Trump in his four-year term, about two-thirds the number his predecessor Barack Obama appointed in his eight years. President Biden, for his part, has appointed 76 federal judges, including a pair to the federal trial bench here in Minnesota, one already seated and another likely to be finalized in the Senate soon. 

But the “Obama/Trump” judges conceit is a double-edged sword. Although Cannon’s decision gave Trump a shot at delaying the investigation and potential criminal charges, a judicial ruling in another suit a couple of days later cast further doubt on the “judges as umpires” mantra.

A state court judge in Michigan threw out the state’s antiquated Depression-era abortion ban, dating back to 1931. In doing so, the judge was dismissive of the contention that she was biased and should have removed herself form the case because she has been a financial contributor to Planned Parenthood, as well as a donor to the campaign coffers of the governor and attorney general, both abortion rights proponents who are participants in the litigation. Those relationships certainly raise concerns about her impartiality. 

To be sure, partisan or ideological considerations did not seem to affect the numerous unsuccessful challenges by Trump and his backers to the election outcome, which were uniformly rejected on some five dozen occasions by the judiciary, including a large number of his appointees. But those cases were so utterly lacking in substance that even his own appointees had little problem summarily dispensing with them. 

However, these more recent cases show that in addressing high profile matters with strong political overtones, judges’ decisions are often skewed toward the person who appointed them.

It’s no coincidence that Trump’s attorneys shopped around for a favorable Florida forum after the FBI search was authorized by a judicial officer in Miami, who incidentally was appointed by that court’s judges, not the president. While his legal team has been criticized — indeed, ridiculed — for their performance, they showed in this instance that they succeeded in seeking and obtaining a sympathetic jurist.

The tendency to rule with ideological and political instincts exists in Minnesota, but in my experience to a lesser extent.

The federal court in this state — composed of six active judges and several senior semi-retired ones — have no Trump appointees. 

They are a mix of appointees of Democratic and Republican presidents. Although their ideology and political leanings occasionally seep through in their rulings, those factors are less noticeable as in the Florida cases. 

The Eighth Circuit, which handles federal appeals from Minnesota and six other states, is more skewed, however; 10 of its 11 active members are Republican appointees, including two from Minnesota, and four of them  were named  by Trump. Those appointments have shifted the tribunal from one of the most liberal in the land in the late 20th century to one of the most conservative. 

In the state judicial system, the trial, appellate and speciality courts also are a mixture of Republican and DFL appointees, although the latter tend to predominate because of appointments made by three consecutive terms of DFL governors. Yet, their rulings are rarely viewed as partisan or ideologically-based.

As far as the “umpire” analogy, Cannon’s dubious pro-Trump ruling in the Mar-a-Lago litigation did not stand for long. Her appointed special master Judge Raymond Dearie cast shade on the Trump strategy by  effectively ruling for the Department of Justice in some of the early skirmishes. Meanwhile, a three-judge panel of the 11th Circuit, a bastion of appellate conservatism, overturned her ruling in allowing the government’s investigation to proceed while holding that the government — not the former president — is entitled to possess and maintain the challenged documents. 

By the way, the special master who has ruled against Trump is a veteran Republican appointee of the late President Ronald Reagan. Two of the three appellate judges who overturned Cannon’s ruling are Trump appointees (the other an Obama appointee). 

Trump’s arguments struck out before these “umpires,” despite the ideological inclinations of two of them. 

Maybe Roberts was on to something after all.

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Marshall H. Tanick
Marshall H. Tanick

Marshall H. Tanick is a Twin Cities employment law attorney with the law firm of Meyer Njus Tanick.