The decision last week by the United States Court of Appeals for the 4th Circuit in International Refugee Assistance Project v. Trump has generated a good deal of commentary dubious of the Trump administration’s travel restriction executive order.
By a 10-3 en banc vote, the judges of the 4th Circuit voted to uphold a lower court’s issuance of an order enjoining the administration from enforcing the executive order. Critics of the executive order point to the lopsided vote in favor of invalidation as evidence of the order’s dubious legal foundation and of the order’s shaky future if its legality reaches the Supreme Court.
In fact, the court, in essence, divided precisely along the lines of the party of the president who appointed the judges. The lopsided nature of the vote thus could be simply a result of the lopsided ideology of the court.
{mosads}A cursory examination of the judges who voted to invalidate, and to uphold, the executive order confirms the alignment between the judges’ presumed ideological preferences and their votes.
The 4th Circuit has historically been conservative among the twelve regional federal courts of appeals. Today, however, it stands as one of the circuits most heavily weighted in favor of Democratic appointees.
Of the 13 4th Circuit Judges who heard the administration’s appeal, there were nine appointed by Democratic presidents (Bill Clinton and Barack Obama) and four appointed by Republican presidents (George H.W. Bush and George W. Bush). (One judge appointed by a Republican President Reagan, and another appointed by President George H.W. Bush, recused themselves.)
Political scientists have validated that, in general, the party of the president who appointed a judge is predictive of the ideological valence of the judge’s votes, at least in politically salient cases.
Thus, looking only at the party of the appointing president, one would predict on this basis that court would rule against the Trump administration by a 9-4 vote.
This is remarkably close to the actual vote in the case: In actuality, all 9 Democratic appointees voted to invalidate the executive order, while all but 1 of the 4 Republican appointees voted to uphold it.
Moreover, digging just slightly below the surface renders entirely unsurprising the vote of the lone Republican appointee judge who voted to invalidate the executive order. Chief Judge Roger Gregory was confirmed by the Senate after his nomination by Republican President George W. Bush.
However, Judge Gregory was originally nominated to the 4th Circuit by Democratic President Bill Clinton near the end of his second term.
When the RepRepublican-controllednate failed to act on the nomination, President Clinton used a recess appointment to temporarily place Judge Gregory on the 4th Circuit. President George W. Bush made Judge Gregory his first judicial nominee.
This was reportedly an effort by President Bush to extend an olive branch to Democrats in the Senate. (If so, the effort failed, with the Democrats filibustering numerous Bush judicial nominees.)
For these reasons, it is probably more accurate to look beyond President Bush’s ultimately successful nomination of Judge Gregory, and instead to categorize Judge Gregory as a Democratic appointee. That categorization allows us to understand the vote of the 4th Circuit as entirely along party lines.
It would be wrong to think that the party of the president who appoints a judge determines the judge’s vote in all cases, or even a substantial majority of cases. At the same time, this predictive power reaches an apex in politically salient cases.
And the travel restriction executive order cases surely raise salient, and highly divisive, issues. It is hardly surprising that, faced with a highly politically salient and divisive case, a court comprised lopsidedly of judges appointed by Democratic Presidents would vote overwhelmingly in a liberal direction.
Commentators may be too quick to conclude that the 4th Circuit’s vote renders the fate of the executive order at the Supreme Court — where a bare majority of judges are Republican appointees — a foregone conclusion.
Jonathan Nash is the Robert Howell Hall Professor of Law at Emory University School of Law. He specializes in the study of courts and judges, federal courts and federal jurisdiction, legislation and regulation, and environmental law. Follow him on twitter at @JonathanRNash.
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