“Obama judges”? Pretty much

Chief Justice John Roberts has rebuked President Trump for referring to “Obama judges.” Trump had responded to a ruling by district court judge Jon Tigar barring enforcement of his revisions to federal asylum rules by saying “this was an Obama judge.”

The Chief Justice rejected Trump’s characterization. He 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. That independent judiciary is something we should all be thankful for.

I like and respect Chief Justice Roberts, but I disagree with him. I believe we have too many federal judges who are doing their level best to assist the left in resisting President Trump. And while I would never refer to a judge as an Obama judge, it’s more than fair to refer to one as an Obama-appointed judge. This may well have been what Trump meant.

The questions of whether it matters who appointed a federal judge and whether such judges view litigants, including President Trump, with equal regard in any meaningful sense are empirical ones. If one can predict with a high degree of accuracy how a judge will rule in a highly controversial case, or in a case challenging a Trump edict the left doesn’t like, just by knowing which president appointed that judge, then Roberts’ defense of the federal judiciary fails.

I don’t know of any study of this question, though it probably has been examined. However, as Trump himself noted when he referred to Judge Tigar as an Obama judge, litigants flock to the Ninth Circuit when they want to challenge his policies.

Why? Because it’s loaded with liberal judges appointed by Democrats. The leftists who take on the president in court believe they will receive favorable rulings from these judges, and they have been right about this virtually without fail. If the case advances to the Supreme Court, where liberal judges are in the minority, Trump is even-money or better to prevail.

I practiced law without appearing more than a handful of times before Obama-appointed judges. But even in the pre-Obama era, I could predict with a high degree of accuracy the way federal appellate court judges would vote in cases involving controversial, politicized subject matter (e.g., employment discrimination), based solely on which president appointed the judges on the panel.

In those days, this was less true of district court judges. However, my successful prediction rate was always significantly higher than it would have been if it made little difference who appointed district court judges.

Chief Justice Roberts is right that we have an independent judiciary in the sense that no one can tell judges how to rule. He is also right that we should be thankful for this.

But we also have a judiciary in which federal judges very often decide controversial cases based on policy preferences and partisan considerations. No president has told them how to vote, but presidents have selected them based on which ideological side they are likely to uphold, and, especially in the case of Democratic presidents, the judges rarely disappoint.

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