AYESHA RASCOE, HOST:
The judge overseeing the handling of government documents seized at Mar-a-Lago last month has drawn scrutiny from the media and the legal profession. Judge Aileen Cannon is overseeing a case that focuses on former President Donald Trump, and yet she was nominated by Trump in his last year in office. Here to discuss the relationship between judges and politics is Neal Devins, a professor at the William & Mary Law School. Thank you so much for joining us.
NEAL DEVINS: My pleasure.
RASCOE: You co-wrote a book called "The Company We Keep: How Partisan Divisions Came To The Supreme Court" (ph). How did the courts become so partisan? And I guess with that question, I need you to also define what you mean by partisan.
DEVINS: The story is a pretty simple story. Ronald Reagan sought to embrace ideology in the selection of judges. So instead of the world before 1980, where the parties were really quite similar to each other ideologically and ideology was not a factor in the selection of judges - it was much more a patronage position - all of a sudden, the selection of judges and the judges themselves were associated with one or the other party.
RASCOE: Getting back to Judge Cannon, the judge in the Mar-a-Lago case, this trend towards partisanship - it's affecting lower courts, as well. Like, is that the case?
DEVINS: Well, the lower court judges who are Republican tend to be more conservative than the Democrats. And I'm not defending her decision. I think it was incorrect. But I think that judge Cannon thought she was following the law. If this were a case involving Joe Biden, she might have come out the same way. We don't know that.
RASCOE: Is part of the issue here not only that the judiciary may have changed but also that the public has changed, where they are also looking at things through a partisan lens?
DEVINS: Yes, that's clearly at play here. I think that the reason you're speaking to me in part is this notion that this is a Trump judge who ruled for President Trump, and perhaps she did so to advance his personal interest. And I think that's how the public understands this. And what will be interesting to see is if this case is appealed to the 11th Circuit, which has a majority of Republican judges. President Trump appointed a good number of judges to the 11th Circuit. We may actually see Trump judges on the 11th Circuit overturn this decision, just as we saw Trump judges during the elections reject claims of election fraud pretty much uniformly.
RASCOE: Some people might look at this and say, well, Judge Cannon - she was appointed by Trump, and now she's ruling on a case about Trump. Is there any precedent for judges recusing themselves in that sort of situation?
DEVINS: A Republican judge has to be able to rule on a case involving President Trump. A Democratic judge has to be able to rule on a case involving President Biden, or else you're eliminating huge numbers of judges from either set of cases. And also, you're essentially embracing the idea that Republican judges can't rule on President Trump and Democratic judges can't rule on President Biden, which is problematic in and of itself.
RASCOE: Is there - are there other motivations for a judge when they are making rulings outside of simply, well, this is the party that I've been associated with; this is the party that that put me into place?
DEVINS: Yeah. Judges care about how they get along with their colleagues. And their colleagues may not be all of the same political party. And also, these are individuals who, when they were selected to the bench, had been very successful lawyers. They have a strong interest in their reputation and not their reputation as a Republican or a Democrat but their reputation as being an excellent lawyer. And so I think there are other motivations than ideology that work towards the courts still being committed to the rule of law, even if they tend to vote in ways that match their party preferences.
RASCOE: If people don't have faith in the judiciary and they don't have faith in the court system, like, what is the ultimate outcome of that?
DEVINS: Well, if you give up your belief in the rule of law and you think judges are simply going to rule to advance one or another partisan or other objective, you lose your faith in government and the ability of government to treat people fairly. The rule of law is core to our democracy, to our belief that even if the government acts unfairly, there are still mechanisms in place to protect the individual. If you say that there are no mechanisms in place, that it's all politics, we're in a bad place, a very bad place.
RASCOE: Neal Devins, professor of law and government at the William & Mary Law School, thank you so much for joining us.
DEVINS: You bet. My pleasure. Transcript provided by NPR, Copyright NPR.
