Meet the Federal Judge Who Could Decide Whether or Not the US Defaults

As the possibility of a government default on the national debt which could tank the global economy looms, the National Association of Government Employees (NAGE) has sued the government in the U.S. District Court in Massachusetts claiming that the debt ceiling law is unconstitutional and unenforceable. According to its complaint, NAGE asks the court to “declare that the Debt Limit Statute is presently unconstitutional and of no force and further seeks to enjoin [President Biden and Treasury Secretary Yellen] from refusing to borrow to meet the operations of government approved by Congress and the debts and obligations that also must be paid pursuant to the Fourteenth Amendment…”

If NAGE prevails in the District Court prior to the so-called "X-Date" being reached, President Biden and Secretary Yellen would be obligated to issue new debt to meet government expenses, even if President Biden refuses to give into Republican hostage-taking and Congress does not act to increase the debt ceiling. It is possible (but by no means certain) that such a ruling could be overturned by the Court of Appeals or the U.S. Supreme Court, if the Biden administration appeals. But the Biden administration could also accept a favorable ruling from the District Court ruling and decline to appeal.

The Massachusetts Federal District Court has eleven judges, so NAGE couldn’t shop for a sympathetic judge the way Republicans did with Texas anti-abortion extremist Judge Matthew Kaczmaryk. However, of these eleven judges, nine were appointed by Democrats, one by George H.W. Bush and one by George W. Bush. Of the judges on the First Circuit Court of Appeals which covers Massachusetts, all are Democratic appointees. The NAGE suit was randomly assigned to District Court Judge Richard G. Stearns, a Clinton appointee.

Since this case is so consequential, I thought it would be helpful to research an intelligence report on Judge Stearns.

Early in his career, Stearns worked for liberal Democrats. In 1972-73 he was special assistant to Sen. George McGovern who ran for President on an anti-war platform, only to lose (badly) to Richard Nixon. From 1975-76 Stearns was a speechwriter for Tip O’Neill who at the time was Lieutenant Governor of Massachusetts and later was a legendary Speaker of the House. From 1979-80 he was director of delegate operations for the presidential campaign of Sen. Ted Kennedy.

A Rhodes scholar, Stearns was literally a “FOB,” a friend of Bill [Clinton] whom he roomed with at Oxford. In 1993, he was reportedly President Clinton’s top choice to replace William Sessions as FBI Director, but withdrew after facing criticism for his liberal leanings and opposition from then-Attorney General Janet Reno.

If may or may not be determinative to Stearns, but in 2011 when President Obama faced a Republican threat of default if he didn’t agree to budget cuts, Stearns’ Oxford roommate, former President Clinton, said that if he were still President—"if it came to that"—he would raise the debt ceiling using powers granted under the 14th amendment of the Constitution. "I think the Constitution is clear and I think this idea that the Congress gets to vote twice on whether to pay for [expenditures] it has appropriated is crazy," Clinton said in an interview with The National Memo columnist Joe Conason. Obama didn’t listen to Clinton’s advice and cut a debt reduction deal with Republican Speaker of the House John Boehner, which many believe slowed the recovery from the 2008 economic meltdown, and may even have helped Trump become president.

A review of Stearns’ long career as a federal judge doesn’t reveal any biases or prejudices and he appears to be a pretty down-the-middle jurist who decides cases based on the law and the facts as he sees them.

He doesn’t seem to have ruled on significant constitutional issues during his tenure so it’s hard to get a read on his constitutional philosophy. A review of his “most noteworthy decisions” in The Almanac of the Federal Judiciary reveals that most of his noteworthy opinions were on relatively technical legal grounds and there don’t seem to be any opinions on hot-button issues like abortion, gun regulation, climate change, or voting rights.

Stearns is quoted as saying “Rigid insistence on the rule of law as a value that transcends all others, even at the risk of collective suicide is (as Justice [Robert H.] Jackson famously warned) simply too high a price to pay.” [emphasis added] This view would seem to align Stearns’ judicial philosophy with that of recently retired Justice Stephen Breyer, a moderate liberal and a vocal opponent of originalism/textualism. Breyer was a pragmatist whose decisions were partly guided by the real-life consequences to the people affected by his decisions. If Judge Stearns approaches constitutional interpretation similarly to Justice Breyer, he might be inclined to overrule the Debt Limit law as a “collective suicide pact.”

The Almanac quotes a number of lawyers who’ve argued before Judge Stearns evaluating his judicial temperament. “He’s very smart and a high quality jurist.” “He’s extremely competent and a smart guy.” “He has excellent legal abilities.” “He’s a studious fellow and he’s careful in his rulings.” “He’s a brilliant man who really works hard to come up with the right decision.”

Having served as a Massachusetts and Federal prosecutor from 1976-1990, Stearns is seen as slightly, but not egregiously, more sympathetic to the government than the defense in criminal cases. According to criminal defense lawyers, “In general he favors the government, but I don’t feel if I get a case with him I’m going to be treated unfairly.” Civil practitioners say “He has no leanings either way.” “He’s right down the middle.”

Judge Stearns has served as a rule of law advisor to the U.S. Departments of State and Defense and to NATO. He lectures frequently on issues involving the rule of law, nuclear proliferation, counterterrorism, and judicial reform in the United States, the United Kingdom, Southern and Eastern Europe, and elsewhere.

After the NAGE suit was filed but before Judge Stearns was assigned the case, Professor Laurence Tribe (with whom I’ve consulted recently about the debt ceiling) said that how quickly the suit moves through the legal system depends, in part, “on which federal district judge gets the suit. It could move extremely quickly.” Based on Judge Stearns’ record, and given the imminence of the X-Date, there’s reason to hope he’ll move it quickly. Tribe also thinks “it is possible that the Treasury Department would welcome this suit…[t]he ceiling is not a permissible bargaining tool for Congress to employ because it threatens to destroy the economy and hold the president hostage.”

It’s impossible to predict with any certainty how Judge Stearns will rule on the NAGE debt ceiling suit. But given this intelligence report, if I were NAGE’s attorney and this were a jury trial, I wouldn’t mind having somewhat like Stearns on the jury.