Red Courts, Blue Courts

Something remarkable happened on November 1:  President Biden nominated a judge to serve in the District of South Carolina.

To be sure, that doesn’t sound remarkable. Presidents nominating judges is ordinary.  Or at least, it has been. And in one sense, it still is. President Biden appointed roughly as many judges as his predecessors in his first two years in office. But President Biden is appointing district judges almost exclusively in blue states. As I show in my article in the Mississippi Law Journal, of his 68 district court appointments made by the end of December 2022, 50 were in blue states (74%), 12 in purple or swing states (18%), and only six in red states (9%).

The disparity is even more extreme with respect to President Biden’s nominations so far in 2023. Of his 45 pending district court nominations that weren’t confirmed at the end of the last Congress, 41 (91%) are in blue states, three (7%) in purple states, and only one (2%) in red states. So even if all of President Biden’s nominees had been confirmed during his first term, he would have appointed 87 judges (84%) in blue states, ten (10%) in purple states, and only six (6%) in red states. The problem isn’t that there aren’t vacancies in red and purple states; it is that President Biden is not nominating judges to fill those vacancies.

This is only the most extreme example of a disturbing phenomenon: the federal judiciary is increasingly fragmented into red courts and blue courts. President Biden is not alone in appointing judges in states in which his party has solid support, though his record in appointing judges to red states is the weakest. President Trump did the same, though not to the same extent. Of Trump’s 174 district court appointments, 110 were in red states (63%), 21 were in purple states (12%), and only 43 were in blue states (25%).

While one might suspect there has always been a political valence to judicial appointments, in fact this is a dramatic and recent change. It was much less true even a decade ago. The Obama administration appointed 268 district judges in total, including 130 judges in blue states (49%), 43 in purple states (16%), and 95 in red states (35%).  And the George W. Bush administration appointed 261 district judges in total, including 117 judges in red states (45%), 51 in purple states (20%), and 93 in blue states (36%). Both administrations saw large-scale political infighting over judgeships, but both had appointment records that were much closer to parity than did President Trump, and certainly than the Biden administration so far.

Another way to understand this change is by looking at the variance in the percentage points of nominees in states supporting the president’s party and those opposed to it. George W. Bush appointed 45% of judges in states aligned with his party and 36% in states opposed to his party, for a party affinity of +9 percentage points. For Obama, the affinity score is +14 (49% vs. 35%). For Trump, it is +36 (62% vs. 26%). And for Biden, it is a whopping +70 (79% vs. 9%).

The combined effect of this party-affinity bias by both Trump and Biden – who together have appointed 223 of the 606 active federal judges, more than one-third of the total – is that 62.5% of district judges in red states have been appointed by Republican presidents, compared with 48% of district judges in purple states, and only 30% of district judges in blue states. The overall disparity is likely to grow even more pronounced because each president in the last two decades has been more likely than his predecessor to appoint judges primarily in states that back him politically.

We are headed for a world in which we have not a single federal judiciary, but a system of red courts and blue courts that parallels our red-state, blue-state division.  This is bad for several reasons.

First, it may mean that federal judges, who have long stood as a bulwark against states passing unconstitutional laws, are more likely to go along with those laws.  Federal courts enforced integration orders in the south in the 1950s and 1960s because the judges there were willing to apply the law in the face of significant local hostility.  By contrast, courts that share the ideology of the states in which they sit may be more likely to do the locally and politically popular thing even if it isn’t consistent with the law. If anything, we might want judges who act as a counterweight to the trends of local politics, or – better still – judges with a variety of backgrounds and perspectives.  Unfortunately, the data suggests increasing polarization. Ranked by the Judicial Common Space (JSC) score – a well-respected measure of judicial ideology – Trump’s appellate judge picks were more extreme than any president in at least the last four decades.

Second, the increasing red-court, blue-court divide leads to sloppy decisions.  Judges that don’t have to worry about persuading colleagues, responding to a dissent, or risking reversal, as long as they do the thing the local in-group likes, feel less need to justify what they are doing. When they do offer justifications, the fact that there isn’t someone with a different view challenging their arguments leads to some remarkably shoddy logic. We have seen numerous examples of this effect in just the past few months:

• A Trump-appointee in Florida, Judge Eileen Cannon, ignored numerous procedural and substantive rules to consistently decide in favor of Trump in his bizarre legal challenge to the government seizure of classified documents from Mar-a-Lago;
• A panel of three Republican-appointed judges wrote an absurd opinion upholding Texas’s requirement that social media platforms must carry all content the Texas legislature approves of, reasoning that a private actor’s decision whether or not to host Nazi propaganda was “censorship,” and that the government’s demand that sites host certain types of speech didn’t implicate the first amendment;
• A notorious Trump appointee in Amarillo, Texas, Judge Matthew Kacsmaryk, who has struck down dozens of Biden administration laws with little justification, granted a “preliminary” injunction against the FDA’s approval of mifepristone, an abortifacient, 23 years earlier. The opinion is expressly partisan and takes a number of positions that don’t pass the straight-face test, including holding that doctors who refuse to prescribe the abortion drug that their patients request have standing because they represent the interests of those patients, and there is no conflict between them.

The state-based and regional differences in judicial ideology also raise the stakes in the long-standing debate over nationwide injunctions – whether injunctions against the federal government bind it nationwide, only in a circuit or district, or only in the case before it.  The risk of nationwide injunctions is that one outlier judge ends up setting policy for the nation, at least temporarily. The division into red and blue courts increases that risk, because plaintiffs can more reliably find friendly judges in particular jurisdictions. Indeed, they may be able to file suit in divisions where they are guaranteed to get a particular judge or a group of judges friendly to them, particularly in Texas, which has many single-judge divisions, and the Western District of Louisiana, most of which is composed of divisions in which a single judge hears almost all the cases. And sure enough, there are well-known Trump judges in Texas and Louisiana who regularly grant nationwide injunctions striking down Biden administration policies. Conservative groups engage in exactly this type of judge-shopping, filing a suit where they are guaranteed to get a friendly judge.

Finally, and most importantly, the growing division into red courts and blue courts is corrosive to the perception of the rule of law. Even if it turned out to be the case that judges decided cases independently of the president who appointed them – and it doesn’t – the perception that politics influences outcomes is bad for the integrity of the judiciary. And it is likely to corrode both the rule of law and the public’s perception of it.

The fact that this change is of such recent vintage gives us some cause for hope that it can be changed. Even in what seemed like a politically charged era for judicial appointments – the first 15 years of this century – we weren’t divided into red and blue courts, and almost all district judges received unanimous or at least lopsided, bipartisan votes. So perhaps we can turn things around by the simple expedient of having presidents focus more attention on appointing judges in states that didn’t vote for them.

But it may be that we need to change Senate norms too. President Biden may be shying away from appointing judges in red states because of the strong historical norm that home-state senators get a quasi-veto (called a “blue slip”) over at least district court judge nominations. If a state has even one Republican Senator, they may simply not be willing to allow a vote on a Biden nominee.  And because all the votes today are so close, for most of the past three years they have depended on at least one judiciary committee Republican vote and generally one or two floor Republican votes. Losing a couple of Republican votes because the home state senators object might doom the nomination and will at the very least make it harder. And at the very least, the extra fight takes up time on the Senate floor, which is a precious commodity. We have seen that play out in the few cases in which President Biden nominated a district judge in a red state. Senator Cindy Hyde-Smith withheld a blue slip on a nominee in Mississippi, for example, because he did not share her anti-trans views. Because of these risks, even fear of a Republican Senator not returning a blue slip may be enough for President Biden to refrain from nominating someone for a red state vacancy.

The blue slip procedure is a problem in the modern, hyper-partisan world of judicial appointments. It’s not clear it was ever a good idea to give individual senators that much power over judges in their home state. But at least in the past it was mostly used to object to particular individuals, or perhaps as a delaying tactic, rather than as a way to prevent appointments from the opposite party altogether.

The Senate eliminated the filibuster for lower court judges in 2013 after Republicans began using it to stop Obama’s appellate court appointments. It would be straightforward to eliminate the blue slip procedure, particularly since it is a norm and not a formal rule. But the Democratic chair of the Senate Judiciary Committee, Senator Dick Durbin, has so far been unwilling to do so. Alternatively, the Senate could constrain the use of the rule, limiting how many times a particular Senator can put a hold on judicial candidates or how long that hold might delay a full Senate vote, or refusing to apply the rule to districts that have long sat vacant in declared “judicial emergencies.”

However we make it happen, the Biden administration – and the administrations that follow, Republican or Democratic – must make greater efforts to appoint judges in all the states, not just the ones that share their political views.  The future of our independent judiciary depends on it.

Mark Lemley is the William H. Neukom Professor of Law at Stanford Law School and the Director of the Stanford Program in Law, Science and Technology. He is also a Senior Fellow at the Stanford Institute for Economic Policy Research and is affiliated faculty in the Symbolic Systems program.

Blue Slips, Confirmation Process, Federal Courts, Importance of the Courts, Judicial Nominations, Nominees