In political writing about the federal judiciary, there is a convention to treat the partisan affiliation of a judge or justice as a mere curiosity; to pretend that it does not matter that much whether a jurist was nominated by Ronald Reagan or Bill Clinton or George W. Bush or Barack Obama as long as he or she can faithfully uphold the law.
The issue with this convention, as we’ve seen in the legal drama over the classified materials found in President Donald Trump’s home at Mar-a-Lago, is that it isn’t equipped to deal with the problem of hyperpartisan, ideological judges who are less committed to the rule of law than to their presidential patron. In particular, this way of thinking about federal courts isn’t equipped to deal with the problem of Trump judges.
In the case of the documents the judge in question is Aileen Cannon of the United States District Court for the Southern District of Florida, nominated by Trump in the spring of 2020 and confirmed by the Senate (with 12 Democratic votes) after his defeat in the November election. Cannon was a federal prosecutor for seven years and had no experience as a judge before being placed on the federal bench for a lifetime appointment at age 39. What she did have to recommend her was longstanding membership in the conservative Federalist Society. That seems to have been more than enough.
In the Mar-a-Lago case, Cannon has behaved less as an impartial judge and more as an ally of Trump. On the question of whether the court would appoint an independent third party to review the documents in question, Cannon ruled in favor of the former president, despite the fact that it made no sense to do so, according to legal commentators from across the political spectrum. Not only is there no legal (or even factual) dispute about the classified nature of the documents, there’s no basis for the former president’s sweeping claim of executive privilege, which would keep government documents out of the hands of, well, the government.
As Lawrence Tribe and Phillip Allen Lacovara write in The Guardian, “No prior case or other authority has treated ‘executive’ privilege as a basis for concealing information from executive branch officials conducting executive functions, here the Justice Department’s investigation and potential prosecution of federal crimes relating to the mishandling of state secrets and presidential records.”
There’s also the minor question of who is actually the president of the United States. Donald Trump is a private citizen. And contrary to Cannon, he no longer has a say in whether the executive branch can have its documents back, if he ever did.
But the law and precedent and common sense do not seem to matter when the judge at issue is an ideologue in robes.
You can see something similar in Texas, where a three-judge panel on the U.S. Court of Appeals for the Fifth Circuit reinstated a Texas law that bans social media companies from regulating speech on their platforms. The law, passed not long after Trump was banned from Twitter in the aftermath of the Jan. 6 attack on the Capitol, was condemned as a constitutional nightmare.
“Social media platforms have a First Amendment right to moderate content disseminated on their platforms,” Judge Robert Pitman, an Obama appointee, wrote in a December 2021 decision that blocked the law, pending appeal. The law, he continued, was “replete with constitutional defects, including unconstitutional convent and speaker-based infringement on editorial discretion and onerously burdensome disclosure and operational requirements.”
The Fifth Circuit disagreed. Writing for the panel, Judge Andrew Oldham, a Trump appointee, upheld the law. For Oldham, “moderation” is little more than censorship. Of course, the First Amendment “protects every person’s right to ‘the freedom of speech,’ ” Oldham writes. “But the platforms argue that buried somewhere in the person’s enumerated right to free speech lies a corporation’s unenumerated right to muzzle speech.” The Texas law, he continues, “does not chill speech; if anything, it chills censorship.”
To a number of legal scholars, regulators and other experts, this was nonsense. Under the Fifth Circuit’s ruling, social media companies and other media organizations no longer have a First Amendment right to their own editorial policies.
That’s why, when the U.S. Circuit Court of Appeals for the 11th Circuit heard a similar case concerning Florida’s attempt to regulate social media companies, it ruled in favor of the plaintiffs, in a unanimous rejection of the Florida law. “We hold that it is substantially likely that social-media companies — even the biggest ones — are ‘private actors’ whose rights the First Amendment protects” and that their “so-called ‘content-moderation’ decisions constitute protected exercises of editorial judgment, and that the provisions of the new Florida law that restrict large platforms’ ability to engage in content moderation unconstitutionally burden that prerogative.”
It should be said that this was a panel of Republican appointees, including one named by Trump. This week, in fact, a different panel of judges on the 11th Circuit — including two Trump appointees — set aside key parts of Cannon’s order, freeing the Justice Department to resume its use of classified documents in its investigation of the former president.
Which is to say that not every Trump appointee is a partisan ideologue, working in his favor. But there are enough Judge Cannons in the mix to ensure that the right (or perhaps I should say wrong) judge at the right time can wreak havoc on the rule of law. We’re seeing it in Florida, we’re seeing it in Texas and we will continue to see it until something is done to lessen the influence of Trump’s appointees.
Thankfully, there is a solution, and it only takes a simple vote of Congress. Expand and reorganize the federal court system.
The practical reason to increase the number of courts and judges is that the country is much larger than it was in 1990, when Congress made its last expansion, adding 11 seats to the circuit court system and 61 seats to the district court system. This was modest compared to 1978, when President Jimmy Carter signed the largest judiciary expansion in history, creating 150 new judgeships and expanding the entire federal bench by more than a third.
In the 32 years since 1990, the United States has grown from a population of roughly 250 million to a population of over 330 million. More people means more legal disputes, more legal disputes means more cases, more cases means more work. And the federal judiciary is swamped. Last year, the Judicial Conference of the United States, a nonpartisan policymaking body for the federal courts, recommended that Congress create 79 new judgeships across existing district and appeals courts.
Congress, and here I mean Democrats, should go further with a court expansion to rival Carter’s. They should create new circuits, new courts and new judgeships. The goal is simple: to account for growth and to deal with the problem of a cohort of hyperpartisan and ideological judges whose loyalty to Trump may outweigh their commitment to the law.
Would it be a partisan move? Yes. But it is a truth of American politics going back to the early days of the republic that partisan problems — like the one engineered by Mitch McConnell, Trump and the Federalist Society — demand partisan solutions.
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