President Donald Trump has already impacted the composition of the U.S. Supreme Court. Imagine if he is re-elected—one can only anticipate radical changes for years, decades, to come.
As we have all too frequently seen, a vote by just one justice can change social policy in America. Consider Neil Gorsuch versus Merrick Garland. The president has already drastically changed how the 11 circuit (appellate) courts around the country will administer the law by appointing 51 people, most leaning conservative, to those courts.
He—with the help of Sen. Mitch McConnell (R-Ky.)—has appointed a staggering 137 district court judges. Elections have consequences. Indeed, we well know the Supreme Court’s 5-4 decision in Bush v. Gore, where the five Republican appointees to the court so obviously won the day for then-presidential candidate George W. Bush.
It used to be rare—except in an extremely controversial case—that the public was reminded that a particular district court judge was appointed by a Republican or Democrat. That has changed, but still, at the end of the day, and it makes a lot of sense, the district judge rarely has the last word. The judge’s decision will invariably be appealed to the circuit court, and perhaps even to the Supreme Court.
District Court Judge Ended Stop and Frisk
It is rarer still that the district judge can herself possibly have an outcome-determinative impact on a presidential election. But let’s look at a decision, seven years ago, by then-District Judge Shira Scheindlin (not Judy), in the case of the stop and frisk policy in New York City. It was litigated by plaintiffs against the administration of then-Mayor Michael Bloomberg. Scheindlin’s decision loudly condemned the policy which escalated under Bloomberg.
After hearing considerable evidence at a trial, Scheindlin concluded that the New York City Police Department’s stop and frisk policy essentially amounted to, in my words, rounding up the usual suspects—the “suspects” being largely black and Latino young men, who really didn’t have reason to be suspects at all other than by virtue of their skin color.
She found the practice had “repeatedly turned a blind eye to clear evidence of unconstitutional stops and frisks.” Sometimes, in fact in the overwhelming number of times, no matter one’s skin color, wearing a hoodie and going to one’s pocket for a cell phone is nothing more than wearing a hoodie and going to one’s pocket for a cell phone.
Scheindlin’s decision was appealed by the Bloomberg-run city, but it was common knowledge that the incoming mayor—Bill DeBlasio (D)—would not pursue the appeal. Scheindlin’s ruling, by the way, became not only the law of New York, but it effectively became a warning shot (and thus a guidepost) for other urban areas that employed stop and frisk.
And so we turn to this presidential-nomination season. Scheindlin, a Clinton appointee now retired from the bench (and, full disclosure, she is now my colleague), has had a distinguished career. Yet, when she rendered her decision, she suffered considerable adverse reaction. The city’s then-police commissioner and its principal lawyer, the corporation counsel, criticized her.
In a highly unusual move, the appellate court astonishingly took her off the case while it was still pending. And for his part, Mayor Bloomberg publicly castigated her, saying the judge knew “absolutely zero” about law enforcement.
Fast forward to 2020. Bloomberg is running for the Democratic Party nomination for the presidency. Immediately prior to his announcement, he admitted that he had been wrong about stop and frisk and took full responsibility “for taking too long to understand the impact it had on black and Latino communities.”
Too little, too late? It’s unclear, but his fellow candidates certainly have argued that as they appeared on debate stages. And should Bloomberg become the Democratic Party nominee, it is easy to imagine what Trump’s (convenient) view will be.
Bloomberg Law is operated by entities controlled by Michael Bloomberg.
So, will Scheindlin’s resolute and totally independent decision make a difference? In a Feb. 19 op-ed in The New York Times, she said that she: believes Bloomberg had a “pure heart” and did what he perceived was the right thing to protect members of minority communities; does not think he is racist; and credits his other good works on behalf of minority populations.
Had her opinion decided in favor of the city and against the plaintiffs, even if many New Yorkers continued to believe that the stop and frisk policy was nonetheless racist in its application, no court finding could now be pointed to by Bloomberg’s opponents to hold the policy over him so ominously.
In other words, it seems, a single trial level judge may indeed have an enormous impact and critical role in an election.
Watergate, Proposition 8 Decisions
While the Scheindlin decision and its potential impact is largely unique, the critical role other single district judges have had on American society can hardly be ignored.
Just think about D.C. District Judge John Sirica’s role, acting alone, in Watergate—first imposing harsh sentences for the burglars to encourage them to cooperate, and later directing President Richard Nixon to turn over his secret tape recordings that were so incriminating to Nixon. The appellate courts did ultimately affirm Sirica and require Nixon to produce the tapes, but it was his strong-armed supervision of the investigation that was critical to Nixon’s decision to ultimately resign his presidency.
And here’s the thing: Sirica was appointed by President Dwight D. Eisenhower. Nixon was Eisenhower’s vice president. Can a judge possibly be more independent than that—issuing rulings that ultimately lead to Nixon’s resignation? The important truth of judicial independence, particularly at the district court level, is that all judicial nominees may prove to be totally independent.
And while it didn’t relate to the presidency, in 2010, San Francisco-based District Judge Vaughn R. Walker, also acting alone as a district judge, heard two weeks of testimony and concluded that California’s then notorious Proposition 8 (marriage is between a man and a woman) “fails to advance any rational basis in singling out [homosexuals] for denial of a marriage license” and was unconstitutional.
This decision, ultimately left in place by the Supreme Court, largely helped pave the way for a total change in the legal meaning of marriage in America.
Here, too, political pigeonholing failed. Walker was first nominated to the bench by President Ronald Reagan, only to have his nomination scuttled by Democrats who believed that he was hostile to gay rights as a trial lawyer. Later, Walker was re-nominated by President George H. W. Bush and confirmed by the Senate to the bench.
Interestingly, perhaps neither president knew at the time (or maybe they did), and perhaps the confirming senators at the time didn’t know (or maybe they did), that Walker is himself gay—an irrelevant fact that the proponents of Prop 8 tried unsuccessfully to use to vacate his decision after they lost.
Appointments Have Consequences
When the U.S. Senate holds confirmation hearings on Supreme Court or circuit court nominees, such hearings are typically momentous—appointees to those seats can have significant consequences for long periods of time. Hearings, however, on the nominations of district judges are typically far less controversial or confrontational.
Elections and the appointment of all federal judges, however, certainly have consequences, and the political party of the president who appoints them may indeed be extremely relevant—notwithstanding the comments of Chief Justice John Roberts in the face of President Trump’s excoriation of appointees by Presidents Bill Clinton and Barack Obama who have ruled against his administration.
President Trump and Mitch McConnell certainly understand the importance of every judge confirmed by the Senate. All of the rest of us should, too.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Joel Cohen is senior counsel at Stroock & Stroock & Lavan LLP. Previously, he served as a prosecutor at the New York State Special Prosecutor’s Office and at the Department of Justice’s Organized Crime & Racketeering Section. He is an adjunct professor of law at both Fordham and Cardozo law schools, teaching “How Judges Decide,” a class based on his book, “Blindfolds Off: Judges on How They Decide” (ABA 2014).