Sitting federal judges are just like the rest of us: They care what people think and are troubled when unfairly criticized for their decisions. Though they can’t say it publicly, they often bristle privately when their decisions are reversed, particularly when they think the reversal was ill-motivated.
Yet they reserve their greatest annoyance for the times they’re criticized in the news media — not for the substance of a decision, but rather by correlation to the president who appointed them. It’s a cheap shot unconnected to substance. This typically occurs when a constitutional issue or one that attacks or supports a current administration is at stake. Broadsides such as a decision by a “Bush appointee” or an “Obama appointee” annoy judges because they make them look partisan, something they work hard not to be when they don their robes.
Such ubiquitous descriptions can be harmful to democracy because they reinforce the idea that judges decide cases along partisan lines. This can be especially true in cases at the appellate level, where there are many judges. News stories — such as those recently about the appeal by President Trump’s former national security adviser, Michael Flynn — may identify the appointment histories of the appellate judges, reading like baseball cards that tick off the history of each player. The mundane truth is that a majority of judges do their level best to decide cases on the merits. As practicing lawyers know, it’s hard to predict what judges will do.
Two weeks ago, a panel of 10 D.C. Circuit judges decided against Flynn’s mandamus petition challenging the decision of District Judge Emmet G. Sullivan in refusing to dismiss the Flynn indictment. Earlier in the case, a three-judge panel had granted dismissal.
The latest 8-2 opinion is actually unremarkable. The law is pretty clear that the extraordinary relief of mandamus — legalese for “hand it over” — can only lie when a litigant would have no other remedy available to him. Yes, Judge Sullivan likely will dismiss the case, but if he doesn’t, Flynn will still have the ability to appeal.
Still, the appellate opinion was per curiam, or an unsigned opinion. This anonymity device is typically designed for controversial cases or situations such as Flynn’s, when the public might make too much of the appointment history of the judges involved. Indeed, without anonymity for the judge who authored the opinion, the public again might be misled by reportage that unfairly — even if unintentionally — suggests partisanship.
One of the judges, however, chose not to be anonymous. Retiring Judge Thomas B. Griffith decided to use his separate, concurring, opinion in Flynn’s case to make a rare statement about judges and pundits: “In cases that attract public attention, it is common for pundits and politicians to frame their commentary in a way that reduces the judicial process to little more than a skirmish in a partisan battle. The party affiliation of the President who appoints a judge becomes an explanation for the judge’s real reason for the disposition, and the legal reasoning employed is seen as a cover for the exercise of raw political power. No doubt there will be some who will describe the court’s decision today in such terms, but they will be mistaken.”
There may be some judges among the nearly 900 federal judges across America who are led too much by their appointing president’s political affiliation. They are, however, a small minority. Chief Justice John Roberts tried to make that point when he publicly challenged President Trump for negatively referring to judges who ruled against him by identifying the presidents who appointed them.
When most federal judges around the country have read Judge Griffith’s brief concurrence, filed on the eve of his retirement from the bench, I suspect they will have let out a collective, “Hear, hear!”
Joel Cohen, who practices law at Stroock & Stroock & Lavan in New York, is a former member of the New York State Judicial Conduct Commission. He is the author of “ Blindfolds Off: Judges On How They Decide” (2014) and teaches about judging at both Fordham and Cardozo Law Schools.