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The politics of federal judges

George Curry | 8/4/2014, 9:57 a.m. | Updated on 8/5/2014, 12:25 a.m.
The two conflicting appeals court rulings last week on the legality of a key provision of the Affordable Care Act ...
George Curry

(NNPA) – The two conflicting appeals court rulings last week on the legality of a key provision of the Affordable Care Act – one supporting it and the other rejecting the health law – underscore the nexus between politics and the judiciary. All of the judges voting to uphold the ACA were appointed by Democrats. All of the judges voting to strike down the law were appointed by Republicans.

We’ve seen this scenario played out at the U.S. Supreme Court, with most controversial rulings decided on a 5-4 vote, with conservatives clinging to a one-vote margin. But the most important appointments might be those of federal appeals court judges, the last stop before a case reaches the Supreme Court.

Approximately 10,000 cases are appealed to the Supreme Court each year. Of those, only 75-80 are accepted. Therefore, many important decisions are made in cases that never reach the Supreme Court.

Separate appeals court rulings on a key provision of the Affordable Care Act on July 22 vividly illustrate why looking at lower court judges is extremely important.

At issue was whether the federal government could provide subsidies to low- and middle-income citizens in the form of tax credits to purchase insurance coverage on the insurance marketplace operated by federal authorities.

A divided three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia said no, with two Republican judges voting against the subsidies and the lone Democrat voting to uphold the provision. In the majority were Thomas Griffith, appointed by George W. Bush, and Raymond Randolph, an appointee of H.W. Bush. Dissenting was Harry T. Edwards, a Jimmy Carter nominee.

Hours later, a three-judge panel of the Fourth U.S. Circuit Court of Appeals in Richmond, all appointed by Democrats, ruled that the Internal Revenue Service correctly interpreted the law when it issued regulations allowing health insurance tax credits for consumers in all 50 states. Judges Andre Davis and Stephanie Thacker were appointed by President Obama and Roger Gregory was originally appointed by Bill Clinton.

Over the years, the Fourth Circuit was considered a bastion of conservatism. With six appointments since he has been in office – and a seventh pending – Obama has been able to flip the court’s majority from Republican to Democratic appointees.

This discussion of appeals court is not intended to minimize the importance of Supreme Court justices. In all likelihood, the next president will make one or two appointments that will determine whether the High Court continues to drift to the right or return to the center.

That’s why it’s so important that African Americans again turn out in record numbers for the presidential election in 2016. This November should be a trial run for mobilizing the Black vote without Obama’s name appearing on the ballot.

Federal judges have lifetime appointments. And anyone who asserts that a judge’s politics doesn’t impact his or her rulings is living in a make-believe world.

In a study titled Ideological Voting on Federal Courts of Appeals: A Preliminary Investigation, published in the Virginia Law Review, the authors (Cass R. Sunstein, David Schkade and Lisa Michelle Ellman) studied 4,400 legal opinions involving politically sensitive issues and discovered that appeals judges – as they did recently in the case of the Affordable Care Act – usually decide cases in keeping with the political philosophy of the president who appointed them to the bench.