AMERICAN BAR ASSOCIATION JOURNAL
September 12, 2024 (on-line)
By Debra Cassens Weiss
Are federal appeals judges appointed by former President Donald Trump disproportionately “superstars in a tournament of judges”? The answer is yes, a new study says, based on three measures used in the past by the study authors.
The study found that Trump-appointed judges “dominate the top scorers tables,” and that a “vilified trio” of them perform exceptionally well: Judge James C. Ho and Judge Stuart Duncan of the 5th U.S. Circuit Court of Appeals at New Orleans and Judge Lawrence VanDyke of the 9th Circuit at San Francisco. All three have attracted liberal criticism.
Trump appointees with “more modest public identities” also do well, according to the study, titled How Different Are the Trump Judges?
The study, noted by How Appealing (Monday, September 9, 2024 – How Appealing), is available here. The Volokh Conspiracy (https://reason.com/volokh/) has coverage.
The three measures used in the study are:
- Productivity, based on the number of the judges’ reported majority, concurring and dissenting opinions.
- Influence, based on how often the judges’ opinions are cited by opinions outside their circuits.
- Independence, based on the number of the judges’ dissents and concurrences and whether they tend to dissent more against judges appointed by opposite-party presidents.
When the three measures are combined, Ho dominates, according to the study.
The authors used varying weights for the three measures to derive a variety of combined scores. Other Trump-appointed judges at the top of various weightings are Judge Amy St. Eve and Judge Michael Scudder of the 7th Circuit at Chicago and Judge Eric Murphy of the 6th Circuit at Cincinnati.
Names showing up in the second and third place slots in the various combined rankings were Trump appointees Scudder, Judge Andrew Oldham of the 5th Circuit at New Orleans, Judge David Stras of the 8th Circuit at St. Louis, Judge Kevin Newsom of the 11th Circuit at Atlanta and VanDyke.
The study also found that “something new is going on” with some Trump appointees based on the degree to which they are writing individual concurrences and dissents.
“In some cases,” the study noted, “these judges are concurring from their own majority opinions.”
The study looked only at judges who were age 55 or younger in 2020 and who were active judges at some point between Jan. 1, 2020, and June 30, 2023. The study deemed these judges to be “auditioners” because their age and legal experience make them potential U.S. Supreme Court nominees and they may be auditioning for the job.
The auditioner pool was made up of 43 Trump-appointed judges and 34 judges appointed by other presidents. Trump judges dominated the pool because they have been on the bench the right amount of time.
The top 10 judges for productivity, adjusted for circuit norms, along with their appointing president, are:
- Judge Michael Scudder, the 7th Circuit at Chicago, Trump
- Judge Amy St. Eve, the 7th Circuit at Chicago, Trump
- Judge Andrew Oldham, the 5th Circuit at New Orleans, Trump
- Judge James C. Ho, the 5th Circuit at New Orleans, Trump
- Judge David Barron, the 1st Circuit at Boston, appointed by former President Barack Obama
- Judge Kevin Newsom, the 11th Circuit at Atlanta, Trump
- Judge Jennifer Elrod, the 5th Circuit at New Orleans, appointed by former President George W. Bush
- Judge Steven Menashi, the 2nd Circuit at New York, Trump
- Judge Stuart Duncan, the 5th Circuit at New Orleans, Trump
- Judge Daniel Bress, the 9th Circuit at San Francisco, Trump; Judge Lawrence VanDyke, 9th Circuit at San Francisco, Trump (tie)
The top 10 judges based on citations in other circuits are:
- Judge Eric Murphy, the 6th Circuit at Cincinnati, Trump
- Judge Amy St. Eve, the 7th Circuit at Chicago, Trump
- Judge Kevin Newsom, the 11th Circuit at Atlanta, Trump
- Judge John Nalbandian, the 6th Circuit at Cincinnati, Trump
- Judge Cheryl Krause, the 3rd Circuit at Philadelphia, Obama
- Judge David Porter, the 3rd Circuit at Philadelphia, Trump
- Judge Chad Readler, the 6th Circuit at Cincinnati, Trump
- Judge Stuart Duncan, the 5th Circuit at New Orleans, Trump
- Judge Britt Grant, the 11th Circuit at Atlanta, Trump
- Judge James C. Ho, the 5th Circuit at New Orleans, Trump
The top 10 judges who are most nonpartisan, starting with least partisan, are:
1. and 2. Judge Eric Miller, the 9th Circuit at San Francisco, Trump; Judge Lawrence VanDyke, the 9th Circuit at San Francisco, Trump (tie)
3. Jennifer Elrod, the 5th Circuit at New Orleans, George W. Bush
4. and 5. Judge Andrew Oldham, the 5th Circuit at New Orleans, Trump; James C. Ho, the 5th Circuit at New Orleans, Trump (tie)
- Judge Robin Rosenbaum, the 11th Circuit at Atlanta, Obama
- Judge Daniel Bress, the 9th Circuit at San Francisco, Trump
- Judge David Stras, the 8th Circuit at St. Louis, Trump
- Judge Raymond Lohier, the 2nd Circuit at New York, Obama
- Judge Ryan Nelson, the 9th Circuit at San Francisco, Trump
The top 10 judges with the most concurrences and dissents are:
- James C. Ho, the 5th Circuit at New Orleans, Trump
- Judge Andrew Oldham, the 5th Circuit at New Orleans, Trump
- Judge David Stras, the 8th Circuit at St. Louis, Trump
- Judge Patrick Bumatay, the 9th Circuit at San Francisco, Trump
- Judge Kevin Newsom, the 11th Circuit at Atlanta, Trump
- Judge Lawrence VanDyke, the 9th Circuit at San Francisco, Trump
- Judge Robin Rosenbaum, the 11th Circuit at Atlanta, Obama
- Judge Julius Richardson, the 4th Circuit at Richmond, Virginia, Trump
- Judge Eric Murphy, the 6th Circuit at Cincinnati, Trump
- Judge Jennifer Elrod, the 5th Circuit at New Orleans, George W. Bush
The study authors are Stephen J. Choi, a professor at the New York University School of Law, and Mitu Gulati, a professor at the University of Virginia School of Law. They cautioned that the study results are preliminary, and that judges’ influence may partly depend on factors such as the kinds of cases that reach appeal.
The authors also acknowledged their three measures “are not the only ones and not necessarily the best ones.” Some may think that the study is “measuring vice rather than virtue,” the authors wrote.
