23 August 2023
WASHINGTON — Minnesota’s political “trifecta” that 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 Basel was recommended by Democratic Sen. Amy Klobuchar. And in a notable decision in 2020, Basel 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.”