Supreme Court precedents, the appeals court said, have drawn a line. On the one hand, politics may play no role in the hiring and firing of most government workers. On the other, it is perfectly acceptable to consider politics for those in “policymaking positions.”
In other words, it is unlawful to hire, say, prison guards or tow-truck drivers based on their political affiliations. But it is fine to consider politics in the appointment of officials who have a role in making policy like, say, prosecutors and public information officers.
Which side of the line do judges fall on?
Judge Julio M. Fuentes, writing for a unanimous three-member panel of the Third Circuit, said judges were in the first category.
“Judges are not policymakers,” he wrote, “because whatever decisions judges make in any given case relates to the case under review and not to partisan political interests.”
That was at odds with statements from other appeals courts, which may have taken a more realistic view of what judges actually do. “A judge both makes and implements governmental policy,” Judge Frank H. Easterbrook of the Seventh Circuit, in Chicago, wrote in 1988. Five years later, Judge Damon J. Keith of the Sixth Circuit, in Cincinnati, agreed. “Judges are policymakers because their political beliefs influence and dictate their decisions on important jurisprudential matters,” he wrote.
The lead lawyer for Mr. Carney is Michael W. McConnell, a prominent former federal appeals court judge who is now a law professor at Stanford. He said the justices who have insisted that there is no political component in judging had made “aspirational statements.”
“I really approve of the aspirational statements,” he added, a little wistfully.