WASHINGTON — A scathing decision Thursday by a federal appeals court panel that shut down a lower court judge’s interference in a criminal investigation involving former President Donald Trump has highlighted a question: Is there such a thing as a Trump judge?
The case pitted one Trump appointee against two others. On one side was Judge Aileen Cannon of the Southern District of Florida, who legal experts across the ideological spectrum said showed unusual solicitude to the former president. On the other were two of the three judges who overturned her, Andrew Brasher and Britt Grant, who said she had greatly overstepped her authority in getting involved.
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The disagreement cast into sharp relief the complexity of Trump’s outsize imprint on the judiciary for a one-term president. While most of his picks clearly lean conservative, their rulings have shown that they are not all inclined to do whatever is expedient for Trump or the Republican Party.
“There is a tendency on the part of some folks to wave their hands at quote, Trump judges, unquote,” said Stephen I. Vladeck, a law professor at the University of Texas. But, he argued, there are two types of appointees.
One category, Vladeck went on, consists of “old-school, legal establishment types” who are ideologically conservative but would probably also have been appointed by any Republican president. Only some, he said, fall into a more radical group, sometimes seeming to lack a judicial philosophy “other than just ‘rule for the Republicans.’”
As president, Trump often referred to judges in personal terms, telling evangelical leaders they could expect good outcomes from “my judges” and bashing a judge appointed by his predecessor who had ruled against one of his border policies as an “Obama judge.”
In 2018, Chief Justice John Roberts took issue with that phrase, telling The Associated Press, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges.”
In fact, Trump’s judicial appointees did not defer to him after the 2020 presidential campaign, when he and his supporters filed a barrage of lawsuits claiming the election had been marred by fraud. Nearly all of the suits were unsuccessful; some prompted blistering decisions from judges Trump had put on the bench.
“Voters, not lawyers, choose the president,” one of Trump’s appointees, Judge Stephanos Bibas, wrote on behalf of a federal appeals court in Philadelphia. “Ballots, not briefs, decide elections.”
The Supreme Court — where three of nine justices were appointed by Trump — has also dealt him a series of setbacks. For instance, the court has declined to block the release of his White House records concerning the Jan. 6, 2021, attack on the Capitol or to prevent a House committee from obtaining his tax returns.
Last month, after the appeals court panel telegraphed that it was likely to rule against him and the Supreme Court refused to comply with his request in the taxes case, Trump lashed out on social media, fuming about “Republican Judges” who “go ROGUE!” to signal their independence from those who appointed them.
Several other Trump appointees have also invited scrutiny.
In the case concerning the House committee’s request for Trump’s tax returns, the Trump appointee to whom it was assigned in 2019, Judge Trevor McFadden of U.S. District Court for the District of Columbia, did not make any ruling for almost 2 1/2 years.
McFadden finally acted in late 2021. While he ultimately agreed that the law was on the House’s side, the delay effectively allowed Trump to run out the clock on oversight efforts.
The judge’s recent decisions also suggest he bears some sympathy for the hundreds of pro-Trump rioters who are facing charges in connection with the Capitol attack. From the bench, he has often expressed skepticism about sentencing low-level Jan. 6 defendants to time in prison. He is also the only federal judge in Washington to have acquitted one of the rioters on criminal charges.
Other Trump appointees have aggressively blocked Biden administration policies, especially in enforcing immigration laws and fighting the coronavirus pandemic.
In Texas, Judge Matthew J. Kacsmaryk ruled last year that President Joe Biden could not rescind a Trump-era policy that required asylum-seekers arriving at the southwestern border to remain in Mexico as their cases were considered. In June, the Supreme Court ruled that Biden had the power to change the policy.
In Louisiana last year, Judge Terry A. Doughty blocked the Biden administration’s plans to mandate coronavirus vaccines for millions of health care workers across the country who work at facilities that receive federal funds. But the Supreme Court reversed him, allowing the mandate to take effect.
Doughty is now overseeing a lawsuit brought by Republican state attorneys general who accuse Biden and some of his top aides of colluding with big tech companies to censor conservative viewpoints. He has allowed the plaintiffs to depose former and current White House officials, including former press secretary Jen Psaki and Biden’s medical adviser, Dr. Anthony Fauci.
Large-scale studies have shown that judges and justices appointed by Republican presidents since Ronald Reagan have been more likely to rule for conservative outcomes — such as favoring corporations over regulators and people claiming discrimination — than those appointed by Democrats or by Republicans before Reagan.
A scholarly analysis published in December 2020 of early decisions by 87 district court judges appointed by Trump found that they were significantly more conservative on matters of civil liberties, civil rights, and economic and labor regulations than previous cohorts of Republican-appointed judges. (In all, Trump appointed 174 such judges, along with 54 appeals court judges.)
Lee Epstein, a University of Southern California law professor, said Trump’s appointees to the appeals courts appeared to be the most conservative group on the bench, according to a preliminary and unpublished analysis of about 25,000 votes by appeals court judges from 1995 and 2020 in cases centered on politically charged topics like civil rights.
Trump appointees voted for a liberal outcome 22% of the time — 12 percentage points below the next most conservative group, those appointed by President George W. Bush. (For President Barack Obama’s appointees, 54% of their votes were liberal.) Still, the data for Trump appointees was too small to draw firmer conclusions, she cautioned.
There is an additional reason to believe that more ideological — and potentially partisan — lawyers have had a shot at becoming life-tenured judges recently than in the past.
Changes to Senate rules in 2013 and 2017 ended the ability of a minority of lawmakers to block up-or-down votes on judicial confirmations with a filibuster. Since then, presidents working with a Senate controlled by their own party — like Trump and now Biden — have had less incentive to put forth nominees likely to attract significant levels of bipartisan support.
Still, pursuing an ideological agenda — like overturning abortion rights, as the Supreme Court finally did after Trump ensured a conservative supermajority — and seeking partisan advantage are not always the same thing.
So it is notable that Trump had something of a marriage of convenience with the conservative legal movement and its network, the Federalist Society, from which many of his judicial appointments are drawn. To shore up the support of skeptical right-wing voters after he won the 2016 Republican primary, he essentially made a deal to outsource his legal and judicial selections to them, like his first White House counsel, Donald McGahn.
Ed Whelan, a conservative legal commentator who has been critical of Trump but supported his judicial nominees, highlighted that dynamic.
“I’d like to think Obama’s picks don’t think of themselves first and foremost as ‘Obama judges’ either,” Whelan said. “So much of Trump’s litigation has nothing to do with, or is even hostile to, conservative judicial principles. It’s just all about himself. And there is no reason that he should expect conservative judges to be inclined to agree with his positions.”
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