Republican senators and conservative judges are sharply criticizing a new policy aimed at combatting so-called “judge shopping,” which has allowed state attorneys general and advocates to effectively choose their judges in some cases.
In letters to about a dozen chief judges across the country, Senate Minority Leader Mitch McConnell (R-Ky.) — along with Sens. John Cornyn (R-Texas) and Thom Tillis (R-N.C.) — urged courts not to heed the policy directives of the Judicial Conference, the federal judiciary’s policymaking arm, saying its “policy is not legislation.”
“It is Congress that decides how cases should be assigned in the inferior courts and Congress has already spoken on this issue in an enacted statute: Congress gave that power to the individual district courts,” the Republican senators wrote. “Whatever the Judicial Conference thinks you ought to do, what you actually choose to do is left to your court’s discretion under the law.”
The Judicial Conference announced a new policy at its biannual meeting Tuesday that mandates federal district courts randomly assign a judge to a lawsuit if the suit aims to block any federal or state law, executive order or regulation.
Under some district courts’ procedures, lawsuits are automatically assigned to a judge who sits in that particular division.
Some critics have expressed frustration that, since some divisions comprise only one judge, plaintiffs in effect have been able to select the judge they expect will deliver a favorable result with striking precision. Proponents of single-judge divisions note they are often used to accommodate rural areas.
In particular, some groups have pointed to the way Texas Attorney General Ken Paxton (R) and conservative legal groups have filed dozens of challenges to federal policies in specific divisions in Texas since President Biden took office.
This tactic has come under intense criticism from the Biden administration, Senate Democrats and others. The Justice Department has criticized the practice and attempted to transfer some of Paxton’s lawsuits.
Last year, Senate Majority Leader Chuck Schumer (D-N.Y.) penned a letter threatening congressional intervention if the Northern District of Texas didn’t change its case assignment procedures.
“After nearly a year of sounding the alarm and calling for courts to act, I am pleased the Judicial Conference has finally taken action to update rules, level the playing field, and bring more justice back into the justice system by finally putting an end to unscrupulous plaintiffs having the ability to choose their judge,” Schumer said in a statement. “The practice of judge shopping has given MAGA-right plaintiffs the ability to hijack and circumvent our federal judiciary by targeting courts that would all but guarantee a handpicked MAGA-right judge who would rule in their favor.”
In McConnell’s letters on Thursday, he and his colleagues called out Schumer individually, saying the policy shift was “developed at the urging of Senator Chuck Schumer.”
“It’s not our place to opine on how you should best manage the caseload of your court. Neither is it Senator Schumer’s place, for that matter. It is your job to manage the caseload of your court according to the dictates of local circumstances and convention,” according to the GOP senators’ letter.
“We therefore hope and expect that you will continue to do what is in the interest of justice for litigants in your jurisdiction without regard to partisan battles in Washington, D.C.,” they continued in the letter.
Other conservative judges expressed similar sentiments. In statements to Reuters, U.S. 5th Circuit Judges James Ho and Edith Jones said the policy change was a result of political pressure, and shared McConnell’s sentiment that the policy change seemed to conflict with federal law.
“Judges are supposed to follow the laws enacted by Congress, not bend the rules in response to political pressure,” Ho said in a statement to Reuters.