Appointed for life, federal judges typically are above the political fray. But they had to be in the political fray to secure what ultimately is a political appointment, and few federal judges who aren’t on the U.S. Supreme Court ever undergo a dramatic change in their political views.
That’s why the first question when dealing with a federal judge is this: Which president nominated the judge?
In cases involving employment rights, the loose rule of thumb is that judges nominated by Republican presidents are more likely to apply pro-business reasoning and to reach a pro-employer outcome — and the judges nominated by Democratic presidents are more likely to apply pro-labor reasoning and to reach a pro-employee outcome. That’s exactly what happened with the three judges randomly assigned by the U.S. Court of Appeals for the Fifth Circuit to the Elliott case.
The two judges who voted in favor of the NFL were nominated by Republican presidents, and the one judge who voted in favor of Elliott was nominated by a Democratic president. If there had been two judges assigned to the case who had been nominated by a Democratic president, the outcome likely would have flipped.
This underscores what ultimately is one of the most important powers of any president. For every vacancy that arises during the president’s term in office, the president has the ability to appoint like-minded judges for lifetime terms to issue rulings that align with the president’s politics and ideologies.