Whatever you think of Judge James Robart’s conclusory decision enjoining the Trump refugee order or Trump’s characteristically intemperate Twitter harangues directed at the judge, one of the more misleading arguments used to defend the district court order is to point out that Judge Robart was appointed to the bench by President George W. Bush in 2004. That’s true – but it doesn’t mean the judge is any sort of Republican or conservative.
District court judicial nominations are often less ideological and partisan than appellate nominations, and in particular, Republican presidents have tended to appoint judges sponsored or favored by home-state Democratic Senators in blue states. Sometimes that’s bipartisan: in New York, when Republican Al D’Amato and Democrat Pat Moynihan served together, it was widely known and accepted that half the district court nominees would be D’Amato nominees and the other half would be Moynihan nominees, and this arrangement persisted under presidents of both parties.
So it is with Judge Robart, as Democratic Senator Patty Murray’s press release made clear when Judge Robart was up for Senate confirmation in 2004:
Murray Works to Confirm Washington Judge James Robart
Feb 11 2004
(Washington, D.C.) Today U.S. Senator Patty Murray worked to confirm James “Jim” Robart to be a U.S. District Court Judge for the Western District of Washington State. Murray worked with Senator Cantwell and White House to nominate Mr. Robart, and today Murray introduced him before the Senate Judiciary Committee.
Senator Murray’s remarks follow:
Thank you, Mr. Chairman and Members of the Committee. I’m honored today to introduce Jim Robart to this committee. For more than 30 years, he has been a respected and important part of the Seattle legal community. Senator Cantwell and I worked with President Bush to select him from a list of very qualified candidates, and today I am proud to offer my full support for his speedy confirmation.
Democratic Senator Maria Cantwell echoed this:
“Mr. Robart’s nomination is the result of a bipartisan selection process that has worked very well for Washington state. Members of Washington state’s legal community, the White House, and my colleague Sen. Patty Murray and I worked together to review a group of applicants. This cooperative approach has produced a number of highly qualified judicial nominees, and I believe it is a sound model for other states.”
Judge Robart had, before entering private practice in 1973, served as an aide on Capitol Hill in both Houses of Congress, working for hawkish and somewhat conservative Democrat Scoop Jackson of Washington and dovish liberal Republican Mark Hatfield of Oregon. He made waves last summer for embracing the “black lives matter” slogan in a combative hearing where he accused the Seattle police union of holding reforms “hostage” by its collective bargaining stance.
Say what you will for or against Judge Robart, his order, or Trump’s comments, but it’s inaccurate to suggest that he’s a conservative Republican simply because George W. Bush signed off on his nomination. And as for the idea that he’s a non-controversial judge because he was confirmed 99-0, well, the Senate also confirmed Neil Gorsuch 100-0 to the Tenth Circuit. Democrats can’t have that cake and eat it too.