The politics of federal judges

The politics of federal judges

By George E. Curry NNPA Columnist

The two conflicting appeals court rulings last week on the legality of a key provision of the Affordable Care Act (ACA) – one supporting it and the other rejecting the health law – underscore the nexus between politics and the judiciary. All of the judges voting to uphold the ACA were appointed by Democrats. All of the judges voting to strike down the law were appointed by Republicans.

We’ve seen this scenario played out at the U.S. Supreme Court, with most controversial rulings decided on a 5-4 vote, with conservatives clinging to a one-vote margin. But the most important appointments might be those of federal appeals court judges, the last stop before a case reaches the Supreme Court.

Approximately 10,000 cases are appealed to the Supreme Court each year. Of those, only 75-80 are accepted. Therefore, many important decisions are made in cases that never reach the Supreme Court.

Separate appeals court rulings on a key provision of the Affordable Care Act on July 22 vividly illustrate the why looking are lower court judges is extremely important.

At issue was whether the federal government could provide subsidies to low- and middle-income citizens in the form of tax credits to purchase insurance coverage on the insurance marketplace operated by federal authorities.

A divided three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia said no, with two Republican judges voting against the subsidies and the lone Democrat voting to uphold the provision.  In the majority were Thomas Griffith, appointed by George W. Bush, and Raymond Randolph, an appointee of H.W. Bush.  Dissenting was Harry T. Edwards, a Jimmy Carter nominee.

Hours later, a three-judge panel of 4th U.S. Circuit Court of Appeals in Richmond, all appointed by Democrats, ruled that the Internal Revenue Service correctly interpreted the law when it issued regulations allowing health insurance tax credits for consumers in all 50 states. Judges Andre Davis and Stephanie Thacker were appointed by President Obama and Roger Gregory was originally appointed Bill Clinton.

Over the years, the 4th Circuit was considered a bastion of conservatism.  With six appointments since he has been in office – and a seventh pending – President Obama has been able to flip the court’s majority from Republican to Democratic appointees.

This discussion of appeals court is not intended to minimize the importance of Supreme Court justices. In all likelihood, the next President will make one or two appointments that will determine whether the High Court continues to drift to the right or return to the center.

That’s why it’s so important that African Americans again turn out in record numbers for the presidential election in 2016. This November should be a trial run for mobilizing the Black vote without Barack Obama’s name appearing on the ballot

Federal judges have lifetime appointments. And anyone who asserts that a judge’s politics doesn’t impact his or her rulings is living in a make-believe world.

In a study titled “Ideological Voting on Federal Courts of Appeals: A Preliminary Investigation,” published in the Virginia Law Review, the authors  (Cass R. Sunstein, David Schkade, and Lisa Michelle Ellman)  studied 4,400 legal opinions involving politically sensitive issues and discovered that appeals judges –  as they did recently in the case of the Affordable Care Act – usually decide cases in keeping with the political philosophy of the President who appointed them to the bench.

“From 1980 through 2002, Republican appointees cast 267 total votes, with 127, or 48 percent, in favor of upholding an affirmative-action policy. By contrast, Democratic appointees cast 198 votes, with 147, or 74 percent, in favor of upholding an affirmative-action policy. Here we find striking evidence of ideological voting,” the study found.

An analysis of George W. Bush’s judicial appointments by Robert Carp, Kenneth Manning L. and Ronald Slidham discovered, “Reagan found a good many conservatives on the bench when he took office. Thus he has had a major role in shaping the entire federal judiciary in his own conservative image for some time to come.”

But as bad as Reagan was, George W. Bush appointed judges who were even more conservative.

Carp told reporters, “Our findings are significant because the general consensus is that President Reagan is the most modern conservative president on record, and yet the judges appointed by George W. Bush are even more conservative than the Reagan judges.”

The Virginia Law Review article concluded: “No reasonable person seriously doubts that ideology, understood as normative commitments of various sorts, helps to explain judicial votes. Presidents are entirely aware of this point, and their appointment decisions are undertaken with full appreciation of it.”

So when someone tells you that the political affiliation of the President appointing judges doesn’t matter or when a president claims to be appointing judges who interpret the law and not legislate from the bench, don’t believe them.