The following is a guest post by Prof. Michael Solimine, the country’s leading expert on the use of three-judge courts to decide a small set of (mostly election) cases, which go on direct appeal to the Supreme Court:

The Bipartisan Campaign Reform Act (BCRA) requires that any constitutional challenge to one of its provisions be decided by a three-judge district court (3JDC) in the District of Columbia, with a direct appeal to the Supreme Court subsequently available. By my count, at least nine such challenges have been filed (The Fall and Rise of Specialized Federal Constitutional Courts, 17 U. Pa. J. Const. L. 115, 129 (2014)), with Republican Party of La. v. FEC (No. 15-cv-1241), scheduled for oral argument before the 3JDC on June 24, being the most recent. Some eyebrows have been raised by the political backgrounds of the members of the panel: Circuit Judge Sri Srinivasan, and District Judges Christopher Cooper and Tanya Chutkan. All are appointees of President Obama, and some might think it curious or worse that in such a politically-charged case, all three judges are affiliated by appointment with one political party.

In 1910 Congress first established the 3JDC, with direct appeals to the Supreme Court, to deal with constitutional challenges to state regulatory laws. It was thought that three judges rather than just one would render wiser results in such important and often controversial cases, that the decision would have greater legitimacy and acceptance than that of a single judge, and that faster Supreme Court review was appropriate. Congress eventually downsized the jurisdiction of these courts, so that now they only hear reapportionment cases (e.g., Shapiro v. McManus, 136 S. Ct. 450 (2015)), or certain specialized topics such as the now-defunct preclearance actions under Section 5 of the Voting Rights Act, or challenges to BCRA. The latter two are venued exclusively in the U.S. District Court for the District of Columbia, presumably because the judges of that court have or can develop greater expertise on such issues.

By statute, the membership of the 3JDC is one district judge, before whom the action was originally filed, and two other judges, at least of whom must be a circuit judge, selected by the Chief Judge of the circuit. Almost always the Chief Judge will select one circuit judge, and another district judge, to fill out the panel. Over the history of the 3JDC there has been questions raised about Chief Judges “packing” panels with appointees of one political party. While there are some anecdotal accounts of such packing, for the most part Chief Judges in all circuits seem to have tried, explicitly or implicitly, to pick judges from different political backgrounds given the often high profile nature of cases before a 3JDC. Data seems to bear this out: a study (The Three-Judge District Court in Voting Rights Litigation, 30 U. Mich. J. L. Ref. 79 (1996)) I conducted of reapportionment and related Voting Rights Act cases from 1976 to 1994 showed that about 30% consisted of judges appointed by Presidents of the same political party. A later study (The Influence of Partisanship, Ideology, and the Law on Redistricting Decisions in the Federal Courts, 65 Pol. Res. Q. 799 (2012)) by Mark McKenzie of these cases from 1981 to 2007 showed only 15% of such panels.

Chief Judge Merrick Garland of the D.C. Circuit appointed the remaining two members of the Republican Party of La. panel in December. Was his choosing two other Obama appointees an anomaly for BCRA cases? To a degree, yes. Of the eight previous challenges, starting with McConnell v. FEC, only one had a 3JDC consisting of judges all affiliated (to the outside world) with the same political party. That was Rep. Nat’l Comm. v. FEC, 698 F. Supp. 2d 150, aff’d mem., 561 U.S. 1040 (2010), made up of three Bush II appointees. One should take such data with a grain of salt, given the small sample size; the uncertainties of what any given Chief Judge was taking into account when making appointments; and the fact that at least district judges in D.C. have a somewhat nonpartisan patina, since alone among such judges there are no Senatorial prerogatives Presidents must take into account when appointing them. (In contrast, for several decades the appointment of DC circuit judges have been politicized, given the high profile administrative law docket of that court, coupled with the court being a breeding ground for Supreme Court appointees.)

One might further wonder what difference the partisan makeup at the trial level makes, given that the 3JDC decision in a BCRA case will inevitably be appealed to the Supreme Court. It might be important for several reasons. The 3JDC engages in fact-finding, which some Justices might be willing to defer, and the trial court’s decision and reasoning (as in any other case) will shape the party’s arguments and the posture of the litigation before the Supreme Court. And until a ninth Justice is appointed, there is the specter of 4-4 splits, which would leave the decision of a 3JDC intact. I don’t think, and don’t believe the evidence shows, that the partisan backgrounds of lower court judges in BCRA cases is strictly determinative of their decisions. But the legitimacy functions of the 3JDC can be best served if Chief Judges take into account those backgrounds in making appointments.