Judges’ complaint to news media: It doesn’t matter who appointed us

Thursday, May 12, 2011

WASHINGTON — Ask a federal judge what he or she thinks of news coverage of the courts, and within a few minutes you will hear this complaint: “Why do journalists report which president appointed me?”

To a judge’s way of thinking, the fact of having been appointed by a Democratic or Republican president is completely irrelevant to how judges decide cases. Especially with life tenure, federal judges feel free to rule in ways that disappoint their appointing presidents.

History is replete with examples — from Theodore Roosevelt’s appointment of Oliver Wendell Holmes to Dwight Eisenhower’s naming William Brennan Jr. — of judges who have voted contrary to the policy preferences of the presidents who appointed them.

So why do the news media persist in making that connection? Almost all of the news stories about the May 10 arguments in Richmond, Va., over the constitutionality of the health-care law mentioned that all three randomly picked judges on the 4th U.S. Circuit Court of Appeals hearing the dispute had been appointed by Democratic presidents — one by Bill Clinton and two by Barack Obama. An NPR report even went so far as to say that the judges themselves were Democrats.

The clear implication was that the 4th Circuit judges’ political pedigree was good news for Obama, indicating at least a sympathy toward the law, which is the signature legislation of the Obama administration. High up in its story yesterday, The New York Times cautioned: “The party of the appointing president is not necessarily predictive of a federal judge’s leanings” — but most other stories left that subtlety out. The Times story went on to note, however, that so far, “in five decisions in lower courts, three Democratic-appointed judges have upheld the Affordable Care Act while two Republican-appointed judges have ruled that its central provision — the requirement that most Americans obtain health insurance — is unconstitutional.”

And therein lies the justification most journalists would offer for naming the president who appointed federal judges who are hearing a particular case, or at least his party. It is a morsel of information that in some instances might be relevant; thus far in the health-care litigation, it has been something of a proxy for how the cases come out. It is relevant in the same way that it was appropriate for the news media to note that Justice Antonin Scalia was born in New Jersey, in the context of a 1997 dispute between the Garden State and New York concerning sovereignty over Ellis Island. Such facts are mentioned not as foolproof predictors of how a justice will vote, but as possible factors in the mix of how a judge — a human being, after all — might decide the case. The affiliation of an appointing president been enough of a predictor through history that Harvard Law School professor Laurence Tribe once wrote about “the myth of the surprised president.”

As it turned out, in the Ellis Island case Scalia voted against his native state’s position — which turns the case into a teachable moment, illustrating that justices don’t always vote the way their heartstrings might pull. The same point could be made when Scalia, a conservative appointed by Ronald Reagan, votes in favor of a criminal defendant or against a law banning flag-burning — and he has done both.

But still, the mere mention of a judge’s appointing president or party in a news story sticks in the craw of federal judges. During a decade of forums bringing together federal judges and journalists, co-sponsored by the First Amendment Center and the Judicial Conference, the complaint came up time after time.

Why is it such a flashpoint between judges and journalists? When asked, Judge D. Brock Hornby of the U.S. District Court for the District of Maine, chairman of the Judicial Conference committee that co-hosted the forums, put it this way yesterday, in a statement he said did not speak for the federal judiciary generally:

“The labeling is frustrating because it implies that the party of the appointing President is the controlling factor in the judge’s decision in the case. Federal judges are trained in the law, they swear an oath to uphold the Constitution, their Code of Conduct mandates impartiality, and they take those obligations very seriously. Abroad, this country is greatly admired for the independence of its federal judiciary and for our adherence to the rule of law. This kind of reporting suggests that all that is a sham, that federal judges are not independent, not committed to the rule of law, but that instead all that really matters is their party politics. In the end, this drumbeat reporting focused on party politics reduces the citizenry’s trust in the unique role the judiciary plays in our constitutional government based upon separation of powers. It can only contribute to the cynicism Americans express for their government.”