Island Judges.

• Author: Campbell, James T.

INTRODUCTION 1890 I. ARTICLE IV COURTS AND THE LOGIC OF DIFFERENTIATION 1901 II. THE 1966 LANDSCAPE: A NEW STATUS FOR PUERTO RICO (ONLY) 1907 A. Puerto Rico Comes into View 1909 B. Cementing the Logic of the Transitional Model: "Exclusive Federal Jurisdiction" 1914 III. A SLOW TRANSFORMATION: 1966 TO 2020 1916 A. The Commonwealth of the Northern Mariana Islands 1917 B. Guam 1921 C. The U.S. Virgin Islands 1926 D. The New Landscape: Island Judges in the Twenty-First Century 1930 IV. THE JUDICIAL CONFERENCE OF THE UNITED STATES: DISCOURSESHAPING 1931 AND RATIONALIZATION A. Caseloads and Commonwealths 1932 B. Judge Laundering 1937 CONCLUSION 1944 INTRODUCTION

On April 18, 2017, U.S. Attorney General Jeff Sessions appeared on a talk show to discuss the ongoing legal battle over President Trump's controversial "travel ban" policy. (1) During the interview, Sessions singled out Judge Derrick K. Watson of the U.S. District Court for the District of Hawaii, who was, at that time, neither the first nor the most recent judge to enjoin the ban. (2) "[T]his is a huge matter," Sessions told the radio host, "I really am amazed that a judge sitting on an island in the Pacific can issue an order that stops the President of the United States from [using] what appears to be clearly his statutory and [c]onstitutional power." (3)

The Attorney General's "island judge" comment triggered an energetic response, both from Hawaiians (4) objecting to perceived second-tier status within the union and from those in Washington sensing a rising tide of executive-branch attacks on the status and independence of federal judges. (5) One of Hawaii's U.S. Senators tweeted a photo of the Senate's unanimous roll-call vote confirming Judge Watson to his life-tenured Article III judgeship, noting that Sessions himself had voted in favor of confirmation prior to becoming Attorney General. (6) Hawaii's Attorney General issued a statement to reaffirm that the "Constitution created a separation of powers in the United States for a reason. Our federal courts, established under [A]rticle III of the Constitution, are co-equal partners with Congress and the President. It is disappointing AG Sessions does not acknowledge that." (7)

On a national level, Sessions's island-judge controversy nested into a growing constellation of executive-branch assaults on the status and independence of federal judges (8)--a trend that has alarmed even President Trump's own judicial nominees (9) and high-ranking members of the Republican Party. (10) In an extraordinary move, Chief Justice John Roberts injected himself into the public conversation by issuing a statement to the Associated Press:

We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.... The independent judiciary is something we should all be thankful for. (11) But this brand of objection to the Trump Administration's political tactics--whether dividing the federal bench into "Obama judges" and "Trump judges" or questioning individual judges' impartiality based on readily identifiable characteristics like Mexican heritage (12) or Hawaii residency--is mounted on difficult terrain. Today's defenders of the independent judiciary risk a blind spot in their framing of judicial norms: the fact that the federal judiciary itself perpetuates the notion that not all federal district judges are created equal.

Some four thousand miles west of Judge Watson's courtroom in the District of Hawaii sit the chambers of another island judge, Frances M. Tydingco-Gatewood. She is, by all accounts, an active member of the federal judiciary, vested with the same powers and responsibilities as the district judges in Hawaii and on the mainland. She also holds membership in the Ninth Circuit's Conference of Chief District Judges. But in terms of status and tenure protection, she and Judge Watson have little in common. Because Chief Judge Tydingco-Gatewood was appointed to the federal district court in Guam, a U.S. territory in the western Pacific, she does not enjoy life tenure--in fact, her judgeship formally expired in August 2016. (13) Initially appointed for a ten-year term by President George W Bush in 2006, Chief Judge Tydingco-Gatewood was renominated by President Barack Obama in May 2016. (14) As the Obama Administration's first and only judicial nominee previously appointed to the bench by a Republican President, her confirmation could have been an asset to those now wishing to counter the "Obama judge" or "Bush judge" labels. However, the nomination expired without a vote at the conclusion of the 114th Congress. (15)

More than three years later, President Trump still has not nominated (or renominated) anyone to the District Court of Guam. As a result, Guam's district judge continues to hold her position without knowing whether she might be replaced tomorrow, next month, or not at all. This arrangement creates an ironic and dangerous appearance--that Presidents of the United States could exert considerable influence over certain parts of the independent judiciary by not appointing their own judicial nominees. (16) For example, by withholding his appointment power, President Trump can hold job security over the heads of federal judges in Guam and other territories where terms have expired to disincentivize them from ruling against his agenda. If and when the President decides he wants a different federal judge in one of these districts, he can simply nominate someone to fill the "vacancy." (17)

As it turns out, Sessions's island-judge comment creates a useful device for uncovering the problem with the Chief Justice's rhetorical image of the independent judiciary. A close look at federal island judges--drawn from five of the federal judiciary's self-advertised ninety-four districts: Guam, Hawaii, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands--reveals that there is no coherent or unified status shared by all of these federal district-court judges. The group of federal island judges includes district judges with life tenure and salary protection (Hawaii and Puerto Rico), (18) as well as federal district judges who may be replaced at any time under the guise of a new appointment (Guam). (19) That both types of judges are counted within a singular "independent judiciary" casts doubt on the substantive meaning of that label. (20)

Historically, those who defend the differentiated status of the federal judiciary's island judges have cited institutional-development grounds. (21) During the first half of the twentieth century, these arguments were overtly racial. The U.S. Supreme Court consistently upheld divergent judicial practices in overseas possessions in the name of "aid[ing] the orderly administration of justice" where the United States "acquir[ed] territory peopled by savages." (22) But in the post-Brown era, (23) these arguments shed their explicit racial character in favor of an account centered on jurisdictional differences and functional concerns. (24) In this version of the argument, each territorial district court follows a "transitional model." (25) That is to say, it imagines territorial district courts to exist on a trajectory towards full equality at some future moment. Less-than-equal federal courts continue only as a matter of necessity, "avoid[ing] the risk of jurisdictional gaps while the territorial government takes time to organize itself." (26) As articulated by Peter Nicolas, the transitional model assumes that the jurisdiction of the federal territorial court "gradually shrinks as local territorial courts are created to adjudicate local matters," until eventually the federal court's docket "becomes indistinguishable from that of a typical Article III district court." (27) At that end point of legal maturity, when functional distinctions collapse, the model imagines status distinctions will collapse as well. The U.S. government would then extend full Article III protections, including life tenure and salary protection, to federal island judges.

Puerto Rican courts followed this precise trajectory during the 1950s and '60s. Informed by the transitional model, Congress observed in 1966 that the federal judge in Puerto Rico had become "the only such judge in the entire Federal system who does not have life tenure and whose court has exclusive Federal jurisdiction." (28) As functional differences in jurisdiction disappeared, Congress could not find "any reason" to deny Puerto Rico's federal court "the same treatment as a State... [and] the same dignity and authority enjoyed by other Federal district courts." (29) On September 12, 1966, President Johnson signed H.R. 3999 into law, conferring life tenure on judges of the U.S. District Court for the District of Puerto Rico, who previously sat for eight-year terms. (30)

But this moment also highlighted constraints imposed by the transitional model. The legislation that gave Puerto Rico's federal judges Article III protections carefully excluded the other territorial district judges in Guam, the U.S. Virgin Islands, and the Panama Canal Zone. The House Judiciary Committee explained this decision on the basis that Puerto Rico's district court exercised "only Federal jurisdiction," (31) whereas "judges in the U.S. District Courts for Panama, the Virgin Islands, and Guam... exercise local jurisdiction as well." (32) In other words, Puerto Rico--and only Puerto Rico--had reached the functional terminus of Congress's transitional model. Employed to correct a problem in one territory, the transitional logic foreshadowed future problems in several more.

This Note traces the story of the federal island judges from the moment the District of Puerto Rico became an Article III court in 1966. Commentators have yet to fully observe the slow transformation in U.S. territorial-court jurisdiction...