In newspaper articles about court cases it's now routine to name the president(s) who appointed the judge(s) involved.¹ The reason is simple: it tells you everything you need to know. Hell, if they put this information in the lead you could skip the whole rest of the story. Democratic appointees reliably deliver liberal results and Republican appointees deliver conservative ones.
As near as I can tell, this is even more true in lower courts than in the Supreme Court. At this point, the Supreme Court might actually be the least partisan court in the country.
Is this new? The Supreme Court has always been political, but what about district courts? How long have they been so neatly polarized? I'd put it at 20 years or so, ever since the two parties got serious about naming reliably partisan lower court judges because they were the eventual feeders to Supreme Court appointments. After all, if you're dead set on nominating Supreme Court justices in their 40s and 50s then you need a big pool of judges to choose from who were partisans in their 30s. That means district courts. On the flip side, district court judges are all essentially auditioning for the Supreme Court. They can't afford to even occasionally break ranks if they have ambitions for promotion.
Bottom line: we really do have a two-tier justice system. Half is red and half is blue. Which one you happen to get is a matter of geography and chance.²
¹This usually isn't done on TV, which means TV news consistently leaves out one of the most important aspects of court stories.
²Except for the occasional bit of forum shopping, of course, where nothing is left to chance.
TFG really does seem do have broken precedent by appointing so many judges who ideologically biased, incompetent, or both.
There's an awful lot of them, and one of them is handling the documents case.
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Kevin already pointed out Trumpo brought lower courts to rough partisan parity.
IDK. It feels like we've always been fighting over the ideological lean of appointments to SCOTUS. But at the district level, the real change has been the ignorance of ABA ratings in favor of FSoc lists. See: https://www.politico.com/story/2017/12/10/trump-judicial-nominees-republicans-287911
That is to say, the district court has been turned into a shitshow in favor of the far-right zealots and in no way, shape, or form have liberals retaliated with its own version of unqualified appointments.
Abe Fortas was filibustered to be Chief Justice in 1968 under Johnson, and then pushed out for a minor financial "scandal" (that so pales in comparison to Thomas' as to be invisible) in 1969 under Nixon.
Since then, with the appointment of conservative Harry Blackmun by Nixon, the Supreme Court has had a majority of Republican nominated justices. Add in Lewis Powell, a right wing advocate of businesses leading the nation rather than citizens (a little unfair, but not too far off) and ideologically the appointment of justices shifted.
And to think this only started 20 years or so ago (that would be 2003) is to ignore the Reagan appointments of Scalia and Thomas who were outside of the normal judicial traditions but reliable conservatives, and the right wing OUTRAGE over Anthony Kennedy's many "liberal" decisions.
The concerted and coordinated effort by the right wing in the United States -- primarily by the Federalist Society but also by the Christian Right -- started long before 20 years ago and has had a major INTENTIONAL impact at all levels of the judiciary (even municipal, but definitely lower federal courts and state courts).
And that's the primary difference between the Democratic nominated justices and the Republican nominated justices -- the influence on the court, the law, and the nation by the right wing is INTENTIONAL.
FWIW Scalia was confirmed unanimously. And you omitted Bork and Nixon's rejected nominees. IF GWB's nomination of Miers had gone through we'd be in a different postion today.
IMHO it's been a slippery slope for a longer time, with both parties participating, although Republicans more so.
"the Reagan appointments of Scalia and Thomas"
Thomas was nominated by George H. W. Bush to replace the failing Thurgood Marshall. They announced it at the Bush compound at Kennebunkport, as I recall. Poppy said Thomas was the best candidate available.
Wikipedia: "When introducing Thomas that day, the president called him "the best person" in the country to take Marshall's place on the court, a characterization belied, according to constitutional law expert Michael Gerhardt, by Thomas's "limited professional distinction, with his most significant legal experiences having been a controversial tenure as chairman of the Equal Employment Opportunity Commission and barely more than one year of experience as a federal court of appeals judge.""
Federalist Society founded 1983 so there you go.
Most cases at the district court level have no real political significance.
Ahem.
https://www.thenation.com/article/politics/reed-o-connor-obamacare-ruling/
Are you familiar with the common English word "most"?
True, but Kevin gives the game away with footnote 2. It is not so much forum shopping as judge shopping because there are so many single judge districts in TX and LA. File in the right place and you are virtually guaranteed a win which can be elevated to the SCOTUS.
If you spin it your hands it changes shape from red and blue to rich and poor...
I remind myself from time to time that this most definitely has not always been the case, as evidenced by the fact that Earl Warren, the Chief Justice of a court most noted with liberalism for many decades now, had been a Republican governor (California, a very different state in the 1950s) who was nominated by a Republican president (Eisenhower).
1969 was the last year the court had a Dem-appointed majority. Every court since has had an R-appointed chief justice and majority, inc the ones that decided Roe, upheld assault weapon bans, ruled in favor of gay marriage, and more. Imagine today’s court doing any of that. You can’t.
Parties have always had differences in legal philosophy, and politics often has influenced the court. But there’s been nothing in our lifetime that compares to the radical ultra-partisanship we’ve seen in recent years.
What does Kevin say about it? This may be “the least partisan court in the country”!
Once again, whitewashing Republican radicalism.
His reflexive contra-lib schtick has fried his brain.
Circa 1963-64, rebounding from the shock of the Kennedy assassination and the Goldwater campaign in the offing, I was a neophyte in politics heavily influenced by the romantic aspect of Libertarianism ala Ayn Rand and managed to become the chairman of the Young Republican club at my university. On Saturdays, a small group of us was picked up in front of the school by a limousine that took us to Union Bank in downtown LA where we spent the morning sitting around the boardroom table discussing free enterprise politics, while snacking on a continental breakfast, before the limousine ride returning us to the campus. I returned to the Democratic fold the following year and lost track of all that.
Notice that Keven doesn't provide a shred of actual evidence for any of these claims about the degree to which courts are more partisan than they used to be. They might be since the polarization in our party structure is so much greater than it used to be but it is still bothersome to engage in this kind of fact free debate. I taught a class called Judicial Policy Making for over 30 years. Knowing the party of the Judge was always an important cue for the direction of the decision but there were also many counter examples. Are there fewer counter examples today? Perhaps, but we obviously won't find out from posts like this.
Two days, two columns of both-sides nonsense.
"Democratic appointees reliably deliver liberal results and Republican appointees deliver conservative ones."
Democratic appointees reliably deliver results in keeping with the traditions and precedents of the courts, and since our national Constitution (and most state ones) are liberal documents such decisions tend to be "liberal". To paraphrase, "United States law has a well-known liberal bias".
Republican appointees more often than not deliver results in keeping with the traditions and precedents of the courts for the same reason -- we are a liberal democracy -- but often go off the damned rails with Bush v Gore, Citizens United, Dobbs, etc. And they are doing so more and more frequently as their ranks swell.
A major difference is that Democratic nominees are not groomed as a collective for the bench. They are picked from the general attorney and judicial ranks, and while they are often also Democrats or civil rights attorneys or public defenders under Biden, they are still committed to defending our liberal democracy and the law.
The Republican nominees have been groomed, in many cases, since high school to become judges and deliver precedent-changing decisions whether at the lower levels of the federal judiciary or the Supreme Court. The Federalist Society and certain "Christian" colleges and law schools seek out young conservatives interested in the law and help them apply for schools, send them to seminars and conferences, get them clerk positions with conservative judges, and generally build a conservative bubble around them from the start. Then they send a list of "acceptable" judges to the president and Senate GOP made up of their most loyal followers.
The conservative judiciary ruling against precedent and twisting law and logic to give MAGA defendants advantages and special masters do so because they were trained to do so, and receive praise and support -- and sometimes RVs and luxury vacations -- when they do.
There is no apples to apples comparison. There's barely a walnut to watermelon comparison.
Amen.
Basically. Yes.
So, Democrats never figured out that they needed their own partisans? That’s a pretty striking indictment of the party’s uselessness.
While it “may” be worse today, the politicization has always been there.
Democratic politicians have always had their hands tied by Democratic voters, who demand absolute boy/girl scouts to represent them.
Republican voters, on the other hand, know that the stuff they want requires morally flexible politicians, so they happily fall in line with any demonic jackal willing to take up their cause... makes stuff like propaganda networks and court packing pretty easy for them.
Good God, why do we need our own partisan judges? That's not rhetoric; I can't think of a single reason why we do and I would honestly like to hear your reasoning.
I don’t think that. I was just making the point that a lot of the griping is because the other guys did it better.
The Republicans aren't a political party, they're an instrument to keep corruption legal.
The Democrats are the only major political party in the US and have to find a way to accommodate everyone, which is why actual partisanship is nearly impossible for them because it could turn off a large part of their voters, even voters in distant regions.
I think it's always been that way, but it's gotten worse. I clerked for a federal district judge in 1990-91. Then, most democrat-appointed judges were somewhat reliably liberal, and repub-nominated judges somewhat reliably conservative. Over the next 30+ years of practice, I noticed two changes. First, since then, the judge selection/confirmation process has consistently gotten more political. (And my own view is that republican Presidents (esp. RR, GWB, DT) have been more focused on getting young partisans irrespective of their legal skill/experience than democratic Presidents (WJC, BHO), though Biden seems to be purposefully trying to counterbalance that republican push through his nominations.) Second -- and this is more recent -- more political issues are being challenged in federal courts now than back in the 1990s and the aughts. These two trends have amplified one another.
Good point about more issues being litigated. I suspect that's partly the emergence of social issues and perhaps partly the decline of Congress and the rise of the Presidency--making much more use of executive orders to fill holes left by a deadlocked and/or ineffective Congress. There's also the rise of well-funded NGOs--Judicial Watch, NRA and its successors, etc.
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"Is this new? The Supreme Court has always been political, but what about district courts? How long have they been so neatly polarized?"
Is the above actually true? Or does it reflect reporting more than reality?
Until very recently few people living outside some local court had any reason to care about its decision, or any easy way to follow them.
But now with the internet outrage machine, there's both mechanism and motive to trumpet to the skies the .1% (or whatever) of decisions that seem outrageous.
Even beyond that, there's the whole issue of "are we a federal country or not"?
Part of the point of being federal is that decisions are [at least this is the theory] made as low down as possible, in accord with "community norm", and in the full expectation that such norms may differ from one community to another. The second part of the internet outrage machine is to demand that this be demolished, that a certain specific set of norms be imposed upon the entire country to hell with what those local communities want.
Two-tier? That implies a hierarchy. And while there may have been some Freudian typo in that choice of term, what you have described is a two-sided (or two-faced if you prefer) system
Republicans are "dead set on nominating Supreme Court justices in their 40s and 50s"
Democrats are not.
Over the last 45 years, average age of SCOTUS nominee:
GOP: 50
Democrats: 57
Life expectancy while on the court *is the most important factor* when nominating a justice, not brilliant opinion writing (who cares about a fiery dissent by RBG?). Longer time on the court means more chances to strategically retire. GOP SCOTUS justices have almost two more (!) presidential terms available.
Are the Democrats incapable of looking up life expectancy data? Apparently so.
Thomas (42 when nominated) may skew the average a bit, but the biggest problem for Democrats is that they just don't get enough chances to fill seats at all.
Since 1969, when Nixon named Burger to replace Fortas and Republicans took a majority that has lasted to this day (54 years), here's the scorecard on presidential nominations to SCOTUS:
Republican appointments: 16
Democratic appointments: 5
In that time, R presidents have served 8 terms, D presidents 6.
It's so lopsided it makes a mockery of lifetime terms (which needs to change but is unlikely to soon). Barring court reform, it's entirely conceivable that R-appointed justices, as long as R's win the White House once every 3 elections or so, can maintain their majority for the next century and beyond.
The last time an R-appointed justice died during a D presidential term was in 1939 (Pierce Butler).
Not true. Scalia died in 2016 while Obama was President. This is the Garland nomination that McConnell sat on.
Well, of course. Why did I miss that? I guess my thinking was:
The last time an R-appointed justice died to be replaced by a D president was in 1939 (Pierce Butler).
Take Thomas out and GOP nom average moves up from 50 to 51.
The obvious near-term example of Democrats' folly is Clinton nominating 60 year old Ginsberg* who was not healthy enough to get past a one-term presidency (Trump), which is why we have a 6 - 3 split instead of 5 -4.
5 -4 split provides opportunities to persuade one GOP nominated justice to break with their ideological colleagues.
6-3? Forget about it.
Ginsberg's legacy is that her selfishness - stayed on the court to match Brandeis' 22-year tenure, and as she closed in on that, declared a new "model" of Stevens [retire at 90] ... and also to help her "cope with her husband's death" (!) - meant the subsequent reversal of cherished "liberal" rulings.
When Ginsberg was nominated, I was asked what I thought about it. My reply was simple:
"Too old."
Yes, Ginsburg was old for starting on the court. Her failure to retire was a tragic error.
Nixon appointed a couple of 60+ justices. Not likely to happen again.