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