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.
“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 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 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.”
That 2010 attack by Mr. Obama was striking.
During his 2010 State of the Union address, he blasted the Supreme Court justices to their faces over a ruling just days earlier on campaign finance. In response, Justice Samuel A. Alito Jr., appointed to the court by Mr. Bush — and a nominee Mr. Obama tried to filibuster as a senator — could be seen mouthing the words “Not true.”
Senate Judiciary Committee Chairman Chuck Grassley noted on Twitter last week that Chief Justice Roberts didn’t rebuke Mr. Obama for his in-person attack.
Mr. Somin said ideological splits among judges often say something about the merits of the arguments.
“When judges on one side of the political spectrum are unified on an issue and those on the other are split on an administration policy, it likely means that the administration’s position is either weak — as in the sanctuary cities cases, where both GOP and Democratic appointed judges have almost uniformly ruled against Trump — or relies on arguments that appeal to only one side of the ideological divide,” he said, noting the travel ban case as an example of the later.
Charles Gardner Geyh, a scholar of judicial ethics and independence at Indiana University’s Maurer School of Law, said ideology does have a subconscious effect on judges but that doesn’t make them biased.
“The data show that judges take law quite seriously, and that in relatively simple, straightforward cases, where the law and facts are fairly clear (which is most of the time) judges will reach the same result regardless of partisan background,” he said in an email. “The media’s focus, however, is understandably not on the easy cases — which are rarely newsworthy — but on the controversial cases, which are controversial often because the facts or law are uncertain.”
He said in those instances, what he called “the margins where a gap in the law exists” judges’ ideology can affect their approach to the case.
“The best evidence suggests that ideologically motivated reasoning at the margins is subconscious, which helps to explain why the chief [justice] is absolutely right when he says that judges do not think of themselves as Obama judges or Trump judges,” he said.
He warned that things could go wrong if judges are selected for their partisan leanings, and the public begins to doubt judges’ independence.
“Which, I suspect, is why Chief Justice Roberts took the unprecedented step of speaking out,” he said.