Politics rule courts, regulators

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.

Gordon L. Weil

About Gordon L. Weil

Gordon L. Weil formerly wrote for the Washington Post and other newspapers, served on the U.S. Senate and EU staffs, headed Maine state agencies and was a Harpswell selectman.