• Show Notes

Dear Reader,

Imagine you’re a federal judge. You’ve been around for a few years now and, while you’re no longer the new kid on the bench, you’re certainly no graybeard; many of your colleagues are a generation or more older and more experienced than you. But you’re finding your way. You’ve handled a few medium-profile cases, you’ve had your ups and downs, and you’re starting to get into the rhythm. Hey, you’ve got life tenure to figure it all out. 

Every day, late in the afternoon, you get an automatically-generated email listing the new criminal indictments that have been randomly “wheeled out” to you. (You now know that this terminology is quite literal; in some districts, there’s an actual spinnable wheel, like one used to draw bingo balls, to assign judges randomly to incoming cases.) Most days, the case names and numbers mean little to you, yet; just an assortment of captions indicating people whose liberty will soon rest largely in your hands. One afternoon, you open the email. And there, among a few other new matters, you see this: 

United States v. Donald J. Trump 

Two federal judges – Judge Tanya Chutkan in Washington DC and Judge Aileen Cannon in the Southern District of Florida – have recently had something like this experience.

The two district court judges who will handle the Trump indictments are, in some respects, bound by common histories. Both are new-ish, for federal judges; Chutkan is 61 years old, with just over a decade on the bench (that passes for middle age, at most, in the federal judiciary) while Cannon is 42, with three years of judicial experience. Both earned their robes after careers trying cases in the same courts over which they now preside. Both are the daughters of immigrants; Chutkan grew up in Jamaica, and Cannon was born in Colombia and raised in Miami with a Cuban mother. Both broke gender and racial barriers by becoming federal district court judges and, predictably, both have been subjected to a barrage of threats and verbal attacks. Now, both jurists face the greatest tests of their careers. 

Yet the two judges are also revealing mirror images of one another. Chutkan ascended to the bench upon her nomination by President Barack Obama and confirmation by the U.S. Senate (by a 95-0 vote) in 2014. Cannon is a Trump nominee, confirmed in 2020 (hers by 56-21, with a dozen Democrats voting for her). Chutkan spent much of her pre-judicial legal career as a federal public defender in Washington, DC; Cannon worked on the other side of the courtroom as a federal prosecutor for DOJ in Florida. Since the Trump cases landed on their dockets, Chutkan has been baselessly attacked by Trump and his supporters, while Cannon has withstood hysterical shrieking from Resistance Twitter and the like. (One prominent liberal scholar compared a ministerial ruling of Cannon’s to Dred Scott, the Supreme Court decision that made racial segregation the law of the land for a century, and Korematsu, which authorized internment of Japanese Americans.)  

The easy narrative is this: Cannon is a sweet draw for Trump, and Chutkan is a nightmare. While we can readily see the origins of these views, they’re both oversimplified and corrosive.

Judge Cannon, the story goes, is a Trump nominee who ruled for him on a discovery dispute that preceded the Mar-A-Lago indictment and then was reversed by a conservative Court of Appeals. That’s all true, but it’s incomplete and misleading. Those who have called for Cannon to recuse herself because Trump put her on the bench assume without support that she’s somehow in the bag for Trump, or loyal to him. The reality is she has life tenure now; she owes Trump nothing, and he’d have no means to collect. And, as to the prior Mar-A-Lago ruling, district court judges get reversed all the time; show me one who’s been on the bench for any amount of time without a handful of reversals. Most importantly, the rap on Cannon ignores that she has handled the Mar-A-Lago indictment decisively, and not exactly in Trump’s favor, so far. In a case where speed is all-important, she has rejected Trump’s entreaties to set no trial date, or to push it back beyond the 2024 election. Instead, she issued a detailed schedule that leads up to trial in May 2024. (DOJ may now have jeopardized that schedule by filing a superseding indictment adding a defendant and three new charges against Trump.)

The casual first take on Judge Chutkan is that she’s an Obama nominee who has ruled against Trump in the past and seems to have it in for him, and for anything connected to January 6. (I’m not going to quote Trump’s nonsensical rantings about the Judge but suffice it to say: he concurs.) Again, that characterization, and its implication of bias, fails upon scrutiny. Yes, Obama put Judge Chutkan on the bench, but see above about the political loyalties of a life-tenured federal judge. And yes, Chutkan forcefully rejected a 2021 Trump challenge to a subpoena issued by the January 6 Committee, pointedly noting that “Presidents are not kings, and plaintiff is not president.” But she wasn’t biased; she was right. Judge Chutkan also has dished out harsh sentences to various January 6 rioters, noting that one offender “did not go to the United States Capitol out of any love for our country … He went for one man.” Again: no lies detected. Again: getting it right does not indicate bias.   

So let me make this proposal. Whether you love Trump or hate him, whether you hope he rots or walks, whether you want to don a team jersey and cheer, or dispassionately observe how the process plays out, let’s all agree to assume good faith by both judges. Both deserve that presumption, based on their experience before taking the bench, and by their initial handling of the two new Trump indictments. 

And let’s stick by that too, at least until either judge proves otherwise. Let’s stipulate that not every decision will go exactly as a party or partisan might wish and, when that happens, we won’t throw up our hands and declare, “See, I knew that lousy [fill in the blank, Obama or Trump] nominee was no good!” I’m not saying we should blindly praise or support these judges just because we like to be shiny happy people. Their work may well merit criticism and, at a certain point, either judge might reveal partiality or partisanship. But unless and until we have demonstrable proof to the contrary, let’s assume that Judge Chutkan and Judge Cannon will do what they swore to do when they first donned their robes: to uphold and apply the law, without fear or favor. They’ve both earned that.

Stay Informed,