No Obama or Trump Judges Here,
Appointees of Both Declare
By Jess Bravin (WSJ)
Updated Sept. 15,
2019 7:46 pm ET
In panel discussion,
judges back Chief Justice Roberts’s rebuttal to President Trump on their
ideological leanings
WILLIAMSBURG, Va.—Federal judges including potential Supreme
Court pick Amy Coney Barrett bemoaned a partisan political environment that has
seen President Trump and some others label them as extensions of the presidents
who appointed them.
In comments Saturday at a panel at William & Mary Law
School, Judge Barrett backed Chief Justice John Roberts ’s public statement
last year that judges shouldn’t be seen as ideological mirrors of their
patrons, which came after President Trump called a ruling that he opposed on
immigration the product of an “Obama judge.”
“The chief justice, I think, articulated what members of the
judiciary feel,” Judge Barrett said of his comments to Mr. Trump. “The chief
justice responded and pushed back and said, ‘You know, we don’t have Obama
judges.’ ”
In the November 2018 statement issued by the court, Chief
Justice Roberts said: “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.”
Mr. Trump then rejected the chief justice’s position,
tweeting “Sorry Chief Justice John Roberts, but you do indeed have ‘Obama
judges.’ ”
Mr. Trump and Senate Majority Leader Mitch McConnell (R.,
Ky.) have made a priority of filing the federal bench with conservative
appointees, and Mr. Trump has embraced the issue as a central point of his re-election
bid. On the Supreme Court, Mr. Trump’s two conservative picks have tilted the
balance to the right, highlighting the importance of the president in
determining the federal courts’ makeup and the future course of the law.
“Historic Milestone indeed!” the president tweeted Friday,
along with an article noting he has filled 150 judgeships.
Three other federal circuit judges on the panel Saturday,
all either Trump or Obama appointees, joined Judge Barrett in rejecting
partisan characterizations of the judiciary, also criticizing news reports that
emphasize which president picked a judge for the bench.
“We certainly are not viewing ourselves as members of teams
or camps or parties. It’s a very frustrating thing about the way the media
portray us,” said Judge Stephanos Bibas, a Trump
appointee to the U.S. Court of Appeals for the Third Circuit, in Philadelphia.
“My boss is not my chief judge. My boss is not my appointing president, my boss
is the Constitution and the laws,” he said.
“We will interpret the law somewhat differently. And we have
different legitimate understandings of how to do that. But none of us would
have taken this job if we wanted to be legislators,” said Judge Bibas, a former law professor at the University of
Pennsylvania.
“We really aren’t thinking, ‘I’m here to do the bidding of
the party of the president that put me here,’ ” said
Judge Cornelia Pillard, an Obama appointee to the
District of Columbia Circuit. “One of the things that really feels threatening,
and frustrating—although I understand why—is how much what the public hears
through the press is about the partisan lineups” on the courts.
The moderator, William & Mary law professor Allison Orr
Larsen, asked the judges what they perceived as the greatest threat to the
judiciary.
Judge Barrett said it was “people perceiving us as
partisan.” While judges differ in their legal theories and methods—and their
votes sometimes can be predicted along ideological lines—they aren’t driven to
produce specific outcomes, she said.
Judge Barrett, a University of Notre Dame law professor
before Mr. Trump appointed her to the Chicago-based Seventh Circuit in 2017, is
a favorite of social conservatives who was considered for the Supreme Court
vacancy that went to Justice Brett Kavanaugh. She has been suggested as a
particularly serious contender should Justice Ruth Bader Ginsburg, age 86, or
another female justice step down during Mr. Trump’s term.
“I don’t really understand why it is that people want so
badly to put us on teams,” said Judge Kevin Newsom, a Trump appointee to the
Atlanta-based 11th Circuit. “You know, my Democratically-appointed colleagues
on the 11th circuit, I love them, and I think they love me, and lots of times
we see eye to eye. And when we don’t, we’re all still friends,” he said.
The judges also raised concerns about the judicial-selection
process, which has become heavily partisan in recent years. For generations,
Senate custom required a supermajority to confirm judges, a requirement that
promoted consensus nominees. In 2013, Senate Democrats, then in the majority,
eliminated that provision for lower-court judges after Republicans used
filibusters to block several Obama nominees. The move cleared the way to
confirm Judge Pillard and others by majority vote.
In 2017, the Senate, under Republican control, took the next
step by eliminating filibusters of Supreme Court nominees, allowing the
confirmation of Justice Neil Gorsuch.
Judge Pillard lamented those
developments.
“We have a lot of authority and we are life-tenured. And so
that’s why people fight so hard,” over judgeships, she said. But “in a healthy
system, we should all be confirmed by 99 or 100% of the vote. And it used to be
that way.”
“It’s a shame that the Senate got rid of the filibuster,”
she added. “I’m a beneficiary of that in terms of having this job. But it’s a
shame that it had to come to that.”
Write to Jess Bravin at
jess.bravin@wsj.com