Senate Minority Leader Mitch McConnell (R-KY) expressed discontent on Thursday, alongside a conservative law professor and judges, regarding the Judicial Conference’s recent announcement of a policy aimed at curbing judge-shopping, a tactic that has favored right-wing litigants.
The Judicial Conference, responsible for setting policies for federal courts, disclosed on Tuesday a new approach to randomly assigning cases seeking nationwide injunctions on federal or state actions.
This move intends to prevent litigants from repeatedly filing cases in divisions with only one judge, such as Judge Matthew Kacsmaryk in Amarillo, to increase the likelihood of receiving a favorable ruling capable of temporarily blocking federal government policies nationwide.
Right-wing litigants, including the state of Texas, have frequently sought out certain judges, often appointed by Trump, in divisions where they consistently receive favorable outcomes to challenge actions by the Biden administration.
Senate Minority Leader and Conservatives Disapprove of Judicial Conference’s Crackdown on Judge-Shopping (Credits: Bloomberg Law News)
Although the announcement lacked specific details on policy text and enforcement, experts welcomed the Judicial Conference’s acknowledgment of court manipulation while expressing reservations about the effectiveness of the new policy.
While judge-shopping has yielded several victories for right-wing litigants, such as the upcoming mifepristone case before the Supreme Court originating from Kacsmaryk’s courtroom, it has significantly altered the legal landscape.
This tactic enables conservative litigants to expedite cases, even those with weak legal grounds, to appellate and Supreme Courts, thereby influencing their dockets with right-leaning causes and advancing conservative legal agendas like the battle against the administrative state.
Despite these significant advantages, many on the right have reacted negatively to the news. McConnell, addressing the Senate floor, questioned the necessity for such a drastic solution, referencing Chief Justice Roberts’ statement about impartiality among judges.
He illustrated potential burdens on individuals challenging laws, suggesting that under a judge-shopping system, litigants may face logistical challenges. McConnell also urged lower courts to disregard the guidance, implying skepticism about the policy’s enforceability.
McConnell’s concerns were echoed by others in conservative circles. Professor Josh Blackman argued that Congress, not judges, should address court politicization. Some right-wing judges, including Trump appointee Judge James Ho of the Fifth Circuit Court of Appeals, criticized the policy as yielding to political pressure and suggested alternative areas for reform, such as bankruptcy and patent dockets.
Randy Crane, chief judge of Texas’ Southern District, raised suspicions about the timing and political motives behind the policy change. Judge Edith Jones of the Fifth Circuit expressed concerns about potential conflicts with federal rules granting district courts control over their dockets.
The Judicial Conference plans to distribute a memo to federal judges and finalize the policy text in the coming months, which will clarify the extent of flexibility available to dissenting conservatives.
