Should presidents and governors select judges and regulators
based on their political views? Should
they be able to direct their appointees in making decisions?
The answer to the first question seems obvious. Because the elected chief executive is given
the constitutional right to pick those who judge, a president or governor must
be expected to select people sharing their political views. That should make it unnecessary as well as
unlawful to give them orders.
These days, decisions of a multi-judge federal court are
usually accompanied by reports about the justices and the president who
appointed them. It is newsworthy when one
party’s appointee votes with justices named by appointees of the other party.
Only one president appointed all the federal judges – George
Washington. He favored a strong central
government, and it is likely all his appointees did as well.
Though he named political friends to the bench, he
undoubtedly assumed that, because they formed the third branch of a government
with checks and balances, they would be independent of his control.
And it did not take his appointees long to overturn
decisions made by John Adams, the second president and Washington’s fellow
Federalist, and assert the Supreme Court’s right to declare laws
unconstitutional. In one stroke, the
Court asserted its independence from the executive and legislative branches.
While presidents and governors occasionally select judges
and regulators based on their nonpartisan and independent wisdom or expertise,
we have grown accustomed to courts and regulatory bodies looking increasingly
like small and highly partisan legislatures.
Because most major federal cases pass through one of the
regional courts of appeals and the Supreme Court, the political origins of their
justices can matter. Right now, a
majority of these judges, though not on the Supreme Court, are Democratic
appointees.
Most cases don’t involve ideological or political issues. The public hears nothing about them.
Sometimes, even at the district court level, the lowest
level in the federal setup, partisanship can crop up. A political decision by a district court
judge, who sits alone and not on a panel, can set the stage for partisan
appeals.
Take the recent district court decision in south Texas,
which overruled President Obama’s measures allowing some illegal immigrants to
stay in the United States.
The case had been brought by Texas and many other states,
including Maine. They picked a district
where the judge was known to oppose efforts to relax immigration constraints.
That’s called “forum shopping,” and, not surprisingly, the
states won the first round of their case.
There’s no doubt the case will end up at the U.S. Supreme Court, where
Republican appointees outnumber Democratic picks by five to four.
Sometimes, the political lineup indicates the outcome. But not always. Take Obamacare, where the Republican-appointed
chief justice voted with the Democratic appointees to save the law.
Partisanship also crops up in regulatory matters. The recent decision by the Federal
Communications Commission to ensure equal access to the Internet and block
preferential use for those who pay for it was only possible because a straight
party-line vote. The three Democrats
outvoted the two Republicans.
In Maine, a recent decision by the Public Utilities
Commission has raised the same kind of issues.
Electric customers are taxed to support energy efficiency efforts. Was the tax supposed to be levied based on
the full cost of electricity or only on the cost of the wires, the part of the
cost regulated by the state?
The full cost approach would raise more money, probably the
legislative intent. But the words
themselves clearly based the tax on wires alone. This is a classic case, where language and
intent may differ, and courts or regulators must decide.
Two PUC members, appointees of Republican Gov. Paul LePage,
opted for the exact language and the third member, named by former Democratic Gov.
John Baldacci, favored legislative intent.
Some critics saw the majority doing LePage’s bidding. That’s undoubtedly unfair, but was probably raised
because LePage has intervened inappropriately with other independent state bodies. In this case, the majority decision was
independent and defensible.
Incidentally, the exact same issue – language versus intent
– has been before the U.S. Supreme Court in its consideration of whether
Obamacare premium subsidies for the insured can be paid in states not having
their own insurance exchanges.
In the end, there’s only one way the political orientation
of most judges and regulators can be influenced by the people – at the ballot
box, by considering key appointments in voting for the president, the governor
or legislators. That’s seldom done by
voters.