Trump judges face scrutiny over president’s cases

Federal judges nominated by President Trump are facing a major public test as they handle cases that involve Trump personally or some of his most controversial policies.

New judges are already under pressure to carefully issue rulings as they learn the ropes of the federal judiciary. But three recently appointed district judges in D.C. — Trevor McFadden, Timothy Kelly and Carl Nichols — have found themselves and their rulings under a magnifying glass as they deal with cases involving Trump.

All three of the Trump-tapped judges have acted as their colleagues on the bench typically do, proceeding cautiously in the recent cases. And while legal experts disagreed over whether the judges are facing additional pressure over their rulings, they agreed that there is more attention on the cases, at least in the media.{mosads}

“These judges realize that everybody’s looking at them, and they’re kind of behind the eight ball either way you look at it,” Russell Wheeler, a visiting fellow in the Brookings Institution’s Governance Studies Program, told The Hill. 

“A decision for the administration could look like favoritism, or a decision against the administration can be taken as perhaps bending over backwards not to appear supportive of them,” he added.

In the last two weeks, McFadden and Nichols have both taken careful approaches to a lawsuit over a New York law that allows Congress to obtain the president’s state tax returns.

McFadden, who was confirmed by the Senate in October 2017, was initially assigned to the lawsuit over Trump’s New York tax returns because he was also assigned to a lawsuit over the president’s federal tax returns.

But McFadden disagreed with Trump’s personal lawyers who sought to have him also oversee the new case, ordering last week that the state tax return case be randomly reassigned to a new judge. 

In his order, he highlighted the importance of adhering to rules about when cases can be considered related to avoid the appearance of judge shopping and to ensure to the public that judges are assigned to cases in an impartial manner.

Nichols, who was just confirmed by the Senate in May and is so new that his name hasn’t been added to the list of D.C. district judges on the court’s website, is now taking on the New York tax returns case in what appears to be his first-ever assignment.

He has been deliberate in his handling of an emergency motion from Trump to block Democratic lawmakers from requesting the president’s New York tax returns. After initially hearing arguments in the case, he asked the parties to try to reach an agreement themselves. 

When they failed to do so, Nichols held a teleconference to get more information from those involved. And one day later, he issued an order that temporarily stops New York from handing over the returns to the Democratic-controlled House Ways and Means Committee, after indicating to the parties that is how he would rule. The panel has not yet requested the returns.

Andy Grewal, a law professor at the University of Iowa, said that in the legal fights over Trump’s tax returns, “it seems like both judges have been pretty cautious.” 

But he said the judges’ cautious approach may have more to do with the nature of the issues before them, such as court shopping, than the fact that they are new to the bench.

Mike Stern, who served in the House Office of General Counsel from 1996 to 2004, said that the judges appear to be trying to handle lawsuits in as apolitical a manner as possible. 

He said that McFadden’s actions in the tax returns case as well as one over border wall funding have been reasonable and that Nichols’s actions in the state tax return case are consistent with courts’ desire to try to not make a decision when there are disputes between different branches of government.

“If they can avoid having to make a decision, they will do that,” Stern said. 

McFadden’s ruling on the tax returns case wasn’t his first high-profile case involving the president. Earlier this year, he presided over House Democrats’ lawsuit challenging the administration’s use of military funds for a border wall.

Before getting to the claims made in the lawsuit, the judge dedicated the first half of a three-hour hearing on the matter to whether he should even be allowed to oversee the proceeding. McFadden ultimately ruled that Democrats did not have standing to bring the case forward. 

Kelly was first thrown into the spotlight when the White House revoked CNN correspondent Jim Acosta’s press credentials. The judge ruled against the administration in that case, ordering that the credentials be reinstated.

He also recently oversaw a lengthy hearing on a Trump policy. Kelly heard arguments for more than three hours last month on whether he should issue a temporary restraining order on a policy that would block migrants who pass through a third country from claiming asylum in the United States, with few exceptions.

Kelly, who was confirmed by the Senate in September 2017, was methodical in his line of questioning, pressing attorneys for both sides on the details of their arguments and frequently referring to documents laid out before him during the hearing.

As he wrapped up the proceeding, he noted the importance of both getting the case right and issuing a ruling quickly.

Kelly ultimately decided to not grant the temporary restraining order, in a win for the Trump administration. But that ruling was overshadowed just hours later, after San Francisco-based Judge Jon Tigar, an Obama appointee, issued a preliminary injunction against the asylum rule.

Some legal experts say that the Trump-appointed judges have been trying to be careful and are acting in ways that are consistent with common court practices.

But others who are following the legal cases closely are worried that Trump-appointed judges will go out of their way to act in ways that benefit the president.

Steve Rosenthal, a senior fellow at the Urban-Brookings Tax Policy Center who backs efforts to obtain Trump’s tax returns, said many Trump-appointed judges were nominated because of their conservative ideology. And he suggested they could feel pressure to show their loyalty to Republicans if they want to eventually be appointed to an appellate court or the Supreme Court.

“Their careers are tied in large measure to them continuing to be loyal,” he said.

But legal experts generally maintained that the judges are acting impartially and with the goal of reaching the best outcome possible.

“Speaking generally, we know that the party of the appointing president is a predictor of how judges will rule in cases, but it’s not a very good predictor,” Wheeler said. “But most of the cases, it can be judged fairly cut and dry. The law is clear. The precedents are clear. There’s really not much discretion to exercise.

“It’s when you get to the cases in which the law is unclear, with new cases that lack a lot of precedents — that’s when notions of public policy come into play,” he added.

Josh Blackman, a professor at the South Texas College of Law, pushed back on how much pressure the judges are under.

He argued that judges in certain circuits, such as D.C., may be more likely than those in other parts of the country to face high-profile cases during their first years. And he said that judges will rule impartially, regardless of which president appointed them to the bench.

“They’re considered judge material because they’re neutral and detached,” Blackman told The Hill.