In most federal district courts, your case gets (figuratively) tossed into the wheel and you pull the judge who comes up. The odds can play out a bit differently in smaller districts and outlier courthouses, where only a few judges are bold enough to tread. For the most part, you file and live with the luck of the draw.
This is one of the points I’ve raised when reformers argue for judges plucked from the ranks of public defenders (but not private criminal defense lawyers, who defend icky people) or judges of various shades of pale. The point is that you don’t end up with some homogenized federal judiciary, where the courts are some common denominator of the various perspectives, experiences and biases of federal judges. A right wing and a left wing judge don’t produce two moderate judges. They produce two judges who might give wildly different decisions on the same set of facts. Is that what will “fix” the judiciary?
In political writing about the federal judiciary, there is a convention to treat the partisan affiliation of a judge or justice as a mere curiosity; to pretend that it does not matter that much whether a jurist was nominated by Ronald Reagan or Bill Clinton or George W. Bush or Barack Obama as long as he or she can faithfully uphold the law.
The issue with this convention, as we’ve seen in the legal drama over the classified materials found in President Donald Trump’s home at Mar-a-Lago, is that it isn’t equipped to deal with the problem of hyperpartisan, ideological judges who are less committed to the rule of law than to their presidential patron. In particular, this way of thinking about federal courts isn’t equipped to deal with the problem of Trump judges.
Not only was this true back when as a matter of convention, but it was true as a matter of the universe of lawyers from which judicial nominees were chosen. Home state senators gave names to the president, and when a senator needed a name to fill a judgeship, he didn’t ask a guy like me, and he wasn’t given the name of a guy like me. It was the name of a Biglaw guy, a prosecutor to be rewarded, or someone who otherwise managed to lick enough envelopes in the senator’s re-election campaign to earn the bench. This, of course, is unfair as most federal judges were very highly regarded, highly experienced lawyers. It was a gig given to serious people, even if they all bought their suits at Brooks Brothers.
Trump was in a different place for a different reason. He was unequipped to be president. He had tons of judges to name, but not the slightest clue who to nominate. He was forced to turn to others to come up with names, and likely didn’t have the slightest inkling who most of them were. Somehow, Aileen Cannon made the cut.
In the Mar-a-Lago case, Cannon has behaved less as an impartial judge and more as an ally of Trump. On the question of whether the court would appoint an independent third party to review the documents in question, Cannon ruled in favor of the former president, despite the fact that it made no sense to do so, according to legal commentators from across the political spectrum. Not only is there no legal (or even factual) dispute about the classified nature of the documents, there’s no basis for the former president’s sweeping claim of executive privilege, which would keep government documents out of the hands of, well, the government.
It was a bad decision. But was it a bad decision because Judge Cannon was a Trump lackey, felt some duty of loyalty to her patron or was hyperpartisan? Or was it her attempt to reach a compromise ruling that avoided partisan outrage, even if inept and misguided? Or was it just a bad decision by an unaccomplished, inexperienced lawyer with a limited background, who should never have been nominated and never confirmed, but for a partisan Senate dedicated to confirming any name put forth by their team whether qualified or not?
Notably, Judge Cannon’s decision was reversed with such speed that it made one’s head spin by the Eleventh Circuit, a panel consisting of not one, but two, Trump appointed judges. Identifying the problem is key to finding a solution, if indeed a solution is needed. You see, if the problem is just that Judge Cannon, who now holds her bench for life upon good behavior, isn’t qualified to be a judge, she would be no more qualified if nominated by any other president. The same would be true of any unqualified judge, whether inclined to lean right or left. But to merely assume her ruling was the product of Trump sycophancy is begging the question.
Thankfully, there is a solution, and it only takes a simple vote of Congress. Expand and reorganize the federal court system.
Congress, and here I mean Democrats, should go further with a court expansion to rival Carter’s. They should create new circuits, new courts and new judgeships. The goal is simple: to account for growth and to deal with the problem of a cohort of hyperpartisan and ideological judges whose loyalty to Trump may outweigh their commitment to the law.
New circuits, new courts, new judgeships, all of which will serve to allow a president to nominate the reliable allies selected by left wing partisans as a counter to the Judge Cannons appointed by Trump.
Would it be a partisan move? Yes. But it is a truth of American politics going back to the early days of the republic that partisan problems — like the one engineered by Mitch McConnell, Trump and the Federalist Society — demand partisan solutions.
But even if the problem is partisanship, which is different from judges who profess a judicial philosophy of, say, originalism or textualism as opposed to the “living Constitution,” would it solve a problem or turn the federal judiciary into a game of Russian Roulette, where outcomes will vary wildly by whether you get wheeled out to an unqualified, unaccomplished, inexperienced judge from the left or right. You may get a lucky draw or a disastrous draw, but turning the goal of the least dangerous branch from fairness and impartiality to a battle royale between extreme partisans is going to mean some big winners and some big losers not because of the merits of their cases, but the wheel of fortune.