Republican senators and conservative judges are pushing back against a new policy from the Judicial Conference aimed at preventing “judge shopping.”
On March 14, Senate Minority Leader Mitch McConnell (R-Ky.) criticized the federal judiciary’s move to curb judge shopping, a practice in which litigants choose judges perceived to be sympathetic to their arguments.
Cases seeking national injunctions have been on the rise in recent years, and Senate Republicans have sought to pare back that practice, he said. But he called the court’s new approach an “unforced error.”
Mr. McConnell said Senate Republicans have tried to address the issue of the growing number of cases in recent years that have sought national injections against policy decisions. However, he alleged that the Judicial Conference, the policymaking body of the judiciary, was effectively siding with Democrats.
“I hope they will reconsider,” he said on the Senate floor.
Mr. McConnell suggested that district courts could resist applying the new policy.
“I hope district courts throughout the country will instead weigh what is best for their jurisdictions, not half-baked ‘guidance’ that just does Washington Democrats’ bidding,” he said.
To address these concerns, the Judicial Conference adopted a new rule that requires lawsuits challenging state and federal laws to be randomly assigned to a federal district judge, instead of being limited to the specific court or division where they were filed.
Mr. McConnell, along with fellow Republicans Sens. John Cornyn (R-Texas) and Thom Tillis (R-N.C.), sent letters to about a dozen chief judges across the country on March 14 urging them not to heed the policy directives of the Judicial Conference.
In their letters, the senators emphasized that “policy is not legislation,” asserting that it is Congress, not the Judicial Conference, that decides how cases should be assigned in the inferior courts.
“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 new policy, adopted by the 26-member Judicial Conference at its biannual meeting on March 12, is intended to prevent litigants, such as state attorneys general, activists, and companies, from pre-selecting judges; it would do this by randomly assigning judges to cases, even in areas where cases have previously been heard by a single judge.
Senate Majority Leader Chuck Schumer (D-N.Y.) and Sen. Dick Durbin (D-Ill.) have praised the policy change. Mr. Schumer mentioned that it will help to restore public confidence in judicial rulings.
According to officials, the policy covers all civil actions seeking to enforce or invalidate state or federal laws, with judges being assigned through a district-wide random selection process.
Conservative Judges Respond
Conservative federal appeals court judges criticized the move on March 13.U.S. Circuit Judges James Ho and Edith Jones, who are serving in the Fifth U.S. Circuit Court of Appeals, issued separate statements on March 13 saying the policy was a result of political pressure and was in conflict with federal law.
“Judges are supposed to follow the laws enacted by Congress, not bend the rules in response to political pressure,” Judge Ho said in a statement.
Judges Jones and Ho, both Republican appointees, serve on the 17-member Fifth Circuit, known as the most conservative appeals court.
Judge Jeffrey Sutton, an appointee of President George W. Bush who serves on the Sixth U.S. Circuit Court of Appeal and chairs the Judicial Conference’s executive committee, called the policy a “good idea.”
The policy’s proponents say it addresses concerns about potential bias in the judicial process.
The tactic of judge shopping, which happens but is frowned upon as a type of gamesmanship, gained national attention after Texas Judge Matthew Kacsmaryk’s decision to suspend the Food and Drug Administration’s approval of the abortion medication mifepristone in April 2023.
That case was filed in Amarillo, Texas, where it was all but certain to go before a judge appointed by President Trump. The Supreme Court eventually put the ruling on hold and is hearing arguments on it later this month.
Many of the lawsuits at issue were filed in small federal courthouses in Texas. These courthouses have only one or two judges, who were appointed by Republican presidents.
These judges have often ruled in favor of Republican state attorneys general, activists, and companies seeking to block policies on various controversial issues such as abortion, immigration, gun control, and labor law.
