WASHINGTON — Minnesota’s political “trifecta” gave the DFL control of the governorship, and the state House and Senate, but when it comes to the federal courts in the state, it’s a different and more complicated picture.
Minnesota’s U.S. District Court judges are nearly evenly split, nearly half were nominated by Republican presidents and the others by Democratic presidents.
A partisan divide – much more evident in the U.S. Supreme Court and the U.S. Court of Appeals – may become more prevalent in the federal district courts, even those in Minnesota, which have not had this kind of strife.
“It tends to matter more now, in the sense that there is a greater correlation between the party of the appointing president and liberal or conservative outcomes,” said George Washington University law professor John P. Collins, Jr.
Former President Trump has viciously attacked on social media the federal judge, Tanya Chutkan, who is overseeing the Washington, D.C. trial concerning Trump’s attempt to overturn the 2020 election. The former president said Chutkan should disqualify herself because she was nominated by former President Barack Obama.
Meanwhile, Aileen Cannon, the Florida judge in Trump’s upcoming trial over his handling of classified documents, is accused of bias towards the defendant, who nominated her to the bench.
Seven judges actively serve on Minnesota’s U.S. District Courts, located in Minneapolis, St. Paul, Duluth and Fergus Falls. Chief Judge Patrick Schiltz was nominated in 2006 by former President George W. Bush. Two others, Judge Eric Tostrud and Judge Nancy Brasel, who both work in the St. Paul courthouse, were nominated by Trump.
Meanwhile, Judge Wilhelmina Wright was named by Obama, and Judge John Tunheim by former President Bill Clinton.
But it is President Joe Biden who may leave the biggest imprint on Minnesota’s federal bench. Two of Biden’s choices for the court, Katherine Menendez and Jerry Blackwell, have been confirmed and are now sitting judges.
And a third Biden nominee, Jeffrey Bryan, is awaiting Senate confirmation. Bryan would replace Tunheim, who is seeking senior status.
Senior status is granted to federal judges if they are at least 65 years old and have served at least 15 years on the bench, or any combination of age and years of service that equals 80. On senior status, federal judges, who are appointed for life, can take a reduced workload – or none at all – and continue to receive their paycheck and benefits. There are currently eight judges on senior status serving on Minnesota’s U.S. District courts, and all but one – who was named by former President Nixon – are still hearing cases. Four of these judges were nominated by Democratic presidents and four were nominated by Republican presidents.
Zachary Gima, vice president of strategic engagement at the American Constitution Society, a progressive legal organization, said U.S. District court judges are not usually swayed by political considerations.
“Most (U.S. District Court) judges are tethered to the law,” he said. “Most of their opinions are not ideological, like the ones the Supreme Court may make.”
There’s evidence of that in Minnesota.
For instance, Trump-nominated Brasel was recommended by Democratic Sen. Amy Klobuchar. And in a notable decision in 2020, Brasel ruled against Minnesota Republicans who asked her to block a seven-day extension of the counting of ballots after Election Day.
Meanwhile, Menendez, a Biden appointee, struck down Minnesota’s ban on allowing 18- to 20-year-olds to obtain permits to carry handguns, to the dismay of Democratic state Attorney General Keith Ellison. Menendez later put her decision on hold pending an appeal.
While Gima says most judges are focused on the fair administration of justice, his organization has a very active campaign to get as many Biden nominees confirmed as possible. Gima said this was because Biden has made diversity, not politics, a goal.
“The diversity this administration has focused on, both in terms of demographics and practice area, really benefits the American public. It better represents the people the judiciary serves,” Gima said.
So far, Biden has nominated 180 candidates for the federal bench, and has had 140 confirmed by the U.S. Senate. By this time in his presidency, Trump had 176 new federal judges confirmed.
“In order for the transformation of the judiciary, we need more confirmations,” Gima said.
To speed confirmations, the American Constitutional Society is pressing Senate Democratic leaders to extend the Senate workweek, which now usually runs from Tuesday through Thursday, and cut back on some of the time off senators will have during the winter holidays.
The society is also seeking an end to an old Senate tradition, the “blue slip” – an opinion written by a senator from the state where a federal judicial nominee resides. A candidate who received an unfavorable blue slip, or none at all, is usually discarded. Gima said GOP senators are using the blue slip tradition to slow nominations.
One of the most conservative courts in the land
While U.S. District Court judges are less likely to suffer the taint of partisanship and impartiality, public opinion and analyses of court decisions have cleanly split the U.S. Appeals Courts between liberal and conservative circuits.
The U.S. Court of Appeals for the Eighth Circuit, which hears appeals from Minnesota, Arkansas, Iowa, Missouri, Nebraska, North Dakota and South Dakota, is considered one of the most conservative in the nation, with only one judge nominated by a Democrat president – Obama – and 10 confirmed during Republican administrations, including four nominated by Trump.
While the circuits in the South and Midwest are considered conservative courts, those on the east and west coasts of the United States as well as 10th Circuit one that hears appeals from western states, are considered liberal courts.
The red/blue divide is likely to continue, said Ryan Abbott, Washington, D.C. bureau chief for Courthouse News Service. Abbott also said the public is paying closer attention to the judicial nomination process since Trump’s presidency.
“There’s been a direct correlation between Trump appointees and the abandonment of long -standing precedent,” Abbott said. “So it’s easier to see now how a president can wield the judiciary as a weapon in ideological battle.”
With lifetime appointments, federal judges, especially those on the Supreme Court, could make their influence felt for decades.
“The politics of it; that’s always going to be there,” Abbott said. “Maybe that’s pessimistic, but I think you’re always going to see the high drama of nomination hearings become more and more bombastic.”
While I have long been an advocate of repealing Article 3 of the constitution, my objections mostly apply to abuses on the Supreme Court level. What on lower levels seems to more adequately reflect the original conception of what a lifetime appointed judiciary should be. One thing I like is that on the lower levels, there seems to be a lot of turnover. Alhough I don’t have statistics on this, what seems to be the case is that manyattorneys serve a year or two on the federal bench and then leave to resume their legal careers. This is a good thing. For the most part, the federal judiciary below the Supreme Court level isn’t cluttered with careerists campaigning for what they see as the ultimate judicial gig.
I am a political liberal, but in a legal context, that doesn’t translate for me at least into being a judicial or legal conservative. Many of the views I hold on the law have historically been considered conservative, particularly with regard to issues of judicial restraint. It doesn’t necessarily bother me that a judge on a particular case has been nominated by a president of that other party, despite how nefarious it occasionally is. Our system depends on fairness, but absent that, what is required is the widespread assumption among all participants that it is reasonably fair or at least not too ridculoulsly unfair. That being the case, in my view, I am willing to give Minnesota judges the benefit of the doubt.
“For instance, Trump-nominated Brasel was recommended by Democratic Sen. Amy Klobuchar.” U.S. District Court judges are recommended to the president by that state’s senators using the “blue slip.” The same with US Attorneys. These disclaimers in the press that the judge (or US Attorney) was “appointed by (the president)” is misleading if not dishonest. The president doesn’t know who these people are and is simply trusting that the senator making the recommendation isn’t too much of a partisan hack.
For example, the Special Counsel in the Biden bribery case, David Weiss, may have been “appointed by President Trump” but he was nominated by Delaware’s democrat senator Chris Coons and he’s been a close family friend of the Bidens for decades and apparently had no intention of prosecuting them since he’s let the statute of limitations run out on most of the felony crimes.
Excellent article. Very wonky, which I love. My only commentary would be about the blue-slip tradition. To put it bluntly, Democrats need to stop being so weak and stop upholding traditions that disadvantage them in the long-run. Other examples include the filibuster and gerrymandering. It is obvious that Republicans see the judicial system as a way to win the game of American politics, especially at the Supreme Court level. The actions of McConnell in particular demonstrate that they have no interest in upholding tradition or honor, and Democrats put themselves at a disadvantage by continuing to pretend otherwise. There are too many things broken in America and too many people hurting for Democrats to continue to play nice.
Spot on.
I am not a big fan of the senate, either. Broadly speaking, it exists to protect the power of states. Why should state power be protected? Why should an Alaska voterga hundred times more po wer in that senate than a California voter? My modest proposal on the subject is to reapportion the states after every just as we do congressional districts, so that each state has the same number of residents. My other modest proposal is based on the fact that the senate was patterned after the British House of Lords. I think senators should have lifetime, instead of six year terms, should wear wigs, have their power limited to delaying legislation for three days, and be provided with a can of snuff every morning.
I will say this, however. The blue slip system is certainly in line with the vision of the founders, who some degree wanted to give the states power to block national legislation. Bear in mind, and up until the 20th century, senators were chosen by state legislators, not by voters. The founders didn’t like voting very much, and in a variety of ways, tried to insulate the federal government from the mobs.
Like most anti-federalists, you seem to forget that the federal government was created by the states, not vice versa.
Is that why the Preamble to the Constitution starts with “We the People of the United States?”
You also seem to forget the change in the nature of federal-state relations wrought by the Civil War Amendments.
Last I looked, the 10th Amendment was still in force.
I’m not sure this is the gotcha you think it is. 10A basically says if it isn’t explicit in the Constitution, then it’s up to states… but we’re talking about court appointments and separation of powers, which is explicitly described in the Constitution. Seems like you just wanted to try and be clever.
Last I looked, the Supremacy Clause also remained in effect, as did several Constitutional Amendments limiting or taking away state powers (the 17th, especially).
So is the 3rd, what’s your point? The 10th is merely tautolgy.
In our political system, power is derived from the people, as an earlier reply states. The people form various associations, like states or counties whatever, but they have no independent existence apart from the people who comprise them.
This theory of political power has been so widely accepted and understood in this country for so long that we seem to have become unaware of the alternatives. Before the revolution, we lived under the British monarchy which holds in theory at least that political power is derived from God expressed through the divine right of kings. The American constitution, in it’s opening lines is an explicit rejection of this theory of the origin of political theory. We, the people, are exercising our political authority in organizing this government. Where we got this political authority is anybody’s guess.
“…we lived under the British monarchy which holds in theory at least that political power is derived from God expressed through the divine right of kings.”
That’s right. And what made the American experience unique is that the Founders proclaimed that power flowed from God, to the people, and from the people, to government (or the king). In other words, your rights come from God, not government. Which I guess explains why Big Government supporters are usually atheists (or atheists believe in Big Government).
Well, they didn’t proclaim it in the constitution. Perhaps some of them proclaimed it elsewhere. If freedom of speech flows from God, why do countries founded on religious authority often don’t have it. Despite being arguably the third Rome, Russia doesn’t now and never really has had anything like an enforceable Bill of Rights. Countries like Britain have nothing like a second amendment right to bear arms. Does this definitively establish them as a nation of infidels?
“Perhaps some of them proclaimed it elsewhere.” Tom Jefferson said it best in the Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”
The Declaration of Independence is not the Constitution. And, in any case, the term is “their Creator” not “God.” It didn’t necessarily mean any particular god. Some of the founders relied on the terms “inherent” or “natural” instead. Frankly, while most founders did believe in a god, many of them weren’t strict adherents to any one faith. Plus, the terminology was actually designed to use the power of the king against himself. The king of England was also the head of the church. If GOD gave the rights, then no king has the power to change that. Context is everything. Plus, while many of the founders did believe that all men were created equal, including Black people and Native Americans, not all of them did. So…the whole “their Creator” thing ended up being pretty malleable. It turns out that “inalienable rights” like Life, Liberty and the pursuit of Happiness could indeed be taken away by government, regardless of whether their Creator granted them. See, e.g., slavery and Manifest Destiny. Government could also restore those rights. See, e.g., the post Civil War amendments.
In point of fact, slaveowners and other scum of the earth had to come up with all manner of post-hoc rationalizations like the “curse of Ham” and other handwaving to justify why the constitution didn’t apply to anyone they wanted to enslave or oppress. Particularly after Nat Turner’s rebellion they started to actively prevent slaves from learning to read because the bible gave them too many ideas on the subject of how human beings should be treated. In the west indies they were already going so far as to create an extremely bowdlerized version of the bible that highlighted the bits about obeying your master and removed all the parts about treating others as your brother, you know, all that hippy dippy stuff that Jesus fellow said.
Yep. It turns out all rights are granted by the People (through the government), not God. If God were responsible for rights, no government could have imposed slavery because God (at least the one that Mr. Tester is invoking) is All Powerful. By the way, prior to 1924, Mr. Tester would not have been able to exercise any rights under the US Constitution, whether granted by the government or his Creator, because he would not have been a citizen (assuming his frequently-claimed ancestry is accurate).
Your rights come from your Creator, and are guaranteed by a government instituted by the just consent of the governed, if the words of Mr. Jefferson are to be given any weight.
You’re a plant for the wig industry, aren’t you?? But in all seriousness, excellent points here. I go back and forth sometimes on the Senate, but I usually end up just wanting to get rid of the institution entirely, which I acknowledge is a radical stance. There is a lot of literature out there about not only the filibuster but the Senate itself being a fundamentally anti-democratic part of our government which I find quite compelling. Of course, I don’t see this happening, but for the sake of political theory and practical government, I don’t see why we couldn’t get rid of the Senate while reconfiguring the House of Representative to both safeguard the interests of smaller states while still being… y’know… representative of the will of the people.
I think our constitution was pretty much the first of it’s kind. The founders had nothing to compare it to and nothing to learn from. It is a result of a series of political compromises with respect to numerous issues some of which have been resolved, and many of which are forgotten. A friend of mine in the legislature got a call once from a lawyer who was looking to establish legislative intent with respect to some specific language in a bill my friend had authored. My friend could not recall the passage, dealing one more blow, I suppose to the doctrine of originalism.
In any event, our constitution had one huge and irredeemable fault; it did not abolish slavery. Indeed, in a number of passages, it implicitly accepted, if not exactly approved of, in the document. The Civil War, and the subsequent revision of the constitution through the enactment of the thirteenth through fifteenth amendments, were the seemingly inevitable result, but we are dealing with the consequences of this fundamental failure on the part of the founder over 230 years later.
John Jay, one of the “founding fathers”, one of the authors of “The Federalist Papers”, and the first Chief Justice of the U.S. Supreme Court, is reported to have said “The people who own the country ought to govern it.” “Governing” includes a judicial philosophy that holds protection of ownership and property rights above liberty and other liberty rights and interests. Ownership of property is “liberty” of THE most sacred sort.
This judicial philosophy appears to be the philosophy of “conservative” judiciary vetted and selected by the modern day Federalist Society who serve the wealthiest who feel they “own” the country and have the “right” to govern it. I think this serves to explain decisions like Citizens United v. FEC and other decisions which not only give corporations more rights than natural persons but make it difficult to investigate and prove corruption.
If politics is going to roil the federal judiciary in Minnesota, its going to be over issues that pertain to protecting the rights of property and property owners and proving corruption.
The first draft of the Declaration of Independence said “… all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Property.”
Indeed, what separates our free society from the commies is the right to own private property, which too many people take for granted. The WEF’s Agenda 2030 famous objective is “you will own nothing and you will be happy.”
For those who don’t speak right wing conspiracy theory, Dennis is repeating falsehoods about a single Danish politician who was looking to start discussion about the future of the “sharing economy” https://www.reuters.com/article/uk-factcheck-wef-idUSKBN2AP2T0
It’s convenient for the monied class that such conspiracy theories continue to spread because it provides cover for their continued efforts to buy up everything and turn us all into serfs living on the sufferance of neo-feudal lords.
https://www.cnn.com/2021/08/02/business/family-homes-wall-street/index.html
https://www.ohchr.org/en/special-procedures/sr-housing/financialization-housing#:~:text=Known%20as%20the%20financialization%20of,rather%20than%20a%20social%20good.
It’s a pretty good grift, all they have to do is point in another direction and say “Uh oh, Commies!” and an untold number of “useful idiots” will run to fight on their behalf.
“The WEF’s Agenda 2030 famous objective is ‘you will own nothing and you will be happy.’”
A brief search on the Google machine will show that what you have just said is, to put it in a genteel form, wildly inaccurate:
https://sdgs.un.org/2030agenda
I was always taught that a person should not comment on what another says unless one has actually read it or heard it. Repeating what you have heard on your favorite agitprop sites without checking it for yourself is either naïve or dishonest.
Good point. John Jay’s reasoning combined with the tendency of unfettered capitalism to concentrate wealth, power and land ownership upwards into fewer and fewer hands just ends up being feudalism with extra steps, which is precisely why it finds so much support among the moneyed class.
“Conservatism consists of exactly one proposition, to wit: There must be in-groups whom the law protects but does not bind, alongside out-groups whom the law binds but does not protect.” Frank Wilhoit
I don’t think we are going to change the way federal judges are appointed anytime soon, much less abolish the senate or the supreme court