Republican senators and conservative judges strongly oppose a new policy designed to address 'judge shopping,' which has let state attorneys general and advocates effectively choose their judges in some cases.
Senate Minority Leader Mitch McConnell (R-Ky.) and Sens. John Cornyn (R-Texas) and Thom Tillis (R-N.C.) wrote letters to about a dozen chief judges, urging them not to follow the policy directives of the Judicial Conference. They emphasized that the power to assign cases in the lower courts has been given to individual district courts by Congress and that the Judicial Conference's policy is not legislation.
The Republican senators pointed out that Congress, through an enacted statute, has already decided how cases should be assigned in the inferior courts. They emphasized that despite the suggestions of the Judicial Conference, the decision on how to assign cases is up to the court's discretion under the law.
The Judicial Conference announced a new policy at its biannual meeting Tuesday that requires federal district courts to randomly assign a judge to a lawsuit if the suit aims to block any federal or state law, executive order or regulation.
Some district courts automatically assign lawsuits to a judge who sits in that particular division.
Critics have expressed frustration that in some divisions with only one judge, plaintiffs have been able to effectively choose the judge they expect to deliver a favorable result with high accuracy. Supporters of single-judge divisions note that they are often used to accommodate rural areas.
In specific, some groups have highlighted the way Texas Attorney General Ken Paxton (R) and conservative legal groups have filed numerous challenges to federal policies in specific divisions in Texas since President Biden took office.
This practice has faced strong criticism from the Biden administration, Senate Democrats, and others. The Justice Department has criticized the practice and tried to transfer some of Paxton’s lawsuits.
Last year, Senate Majority Leader Chuck Schumer (D-N.Y.) wrote 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.”
“We should not give our opinion on how you should best handle the workload of your court. Senator Schumer should not do so either. It is your job to manage the workload of your court according to the local circumstances and tradition,” as stated in the GOP senators’ letter. your job to manage the workload of your court based on local circumstances and tradition,” as stated in the GOP senators’ letter.
“We therefore hope and expect that you will continue to do what is best for the fair treatment of people involved in cases in your area without considering the political fights 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 resulted from political pressure, and shared McConnell’s feeling that the policy change appeared to go against federal law.
“Judges are supposed to follow the laws created by Congress, not change the rules because of political pressure,” Ho said in a statement to Reuters.
