GOP Leaders Push Judiciary to Ignore Policy Designed to End ‘Judge Shopping’

“Look who just came out and said it: We’re against the fair and impartial administration of justice,” said one civil rights attorney.

BY Julia Conley. Published 3-15-2024 by Common Dreams

Senator Mitch McConnell of Kentucky speaking at CPAC in 2014. Photo: Gage Skidmore/flickr/CC

Republican lawmakers on Thursday signaled they want to stop judges from following a new judicial policy unveiled this week that’s aimed at curbing what one journalist called “one of the most outrageous aspects of the American legal system.”

In a letter to the chief justices of U.S. district courts across the country on a new rule regarding the practice of “judge shopping,” Senate Minority Leader Mitch McConnell (R-Ky.) joined Sens. John Cornyn (R-Texas) and Thom Tillis (R-N.C.) in advising the judges that “Judicial Conference policy is not legislation.”

The policy in question, approved by the Judicial Conference on Tuesday, would prevent plaintiffs from filing lawsuits that seek to block state or federal actions in single-judge divisions—a practice that right-wing litigants have been criticized for using in order to secure favorable rulings. Instead, the court system would randomly assign lawsuits to any judge throughout the district where they were filed.

The practice of judge shopping, wrote Ian Millhiser at Vox on Tuesday, “turned Matthew Kacsmaryk, an obscure advocate on the Christian right appointed by former President Donald Trump to the Northern District of Texas, into one of the most powerful government officials in the entire country” in recent years, due to the judge’s status as the only federal trial judge based in Amarillo, Texas.

Attorneys representing right-wing causes have filed numerous lawsuits in Kacsmaryk’s court, including one in which a parent sued the government over Title X funding of family planning clinics and a case challenging federal approval of mifepristone, which is used in medication abortion.

Senate Democrats last year wrote to the Judicial Conference and called on the body to “address this problem and restore fairness to our federal judiciary.”

In an attempt to ensure the judicial system continues supporting judge shopping, the Republican leaders told chief justices: “It is your job to manage the caseload of your court according to the dictates of local circumstances and convention. 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.”

The letter amounted to an admission that the GOP is “against the fair and impartial administration of justice,” said civil rights attorney Leslie Proll.

At The American Prospect, Ryan Cooper wrote Friday that judge shopping is “offensive” to “basic principles of the rule of law and democratic values.”

“Government is supposed to be based on the consent of the governed, and the principal focus of the judiciary should be ensuring the law is applied in a consistent and coherent fashion rather than acting as an unelected legislature,” wrote Cooper. “That holds double when it comes to any one of 677 district court judges, who have no business whatsoever dictating terms to the people as a whole. But with judge shopping, a random handful of extremists can file a lawsuit based on crackpot nonsense or actual lies, present their case to a carefully chosen friendly judge who will automatically rule in their favor, and seize control of some national policy.”

Sen. Dick Durbin (D-Ill.), who chairs the Senate Judiciary Committee, told Bloomberg Law Thursday that the Judicial Conference had acted “to curb the ability of MAGA extremists to handpick their preferred Trump-appointed judge.”

“America has seen what happens when MAGA Republicans use the courts to advance their unpopular agenda because they cannot prevail in the court of public opinion—just look to recent mifepristone cases in Texas. Preventing this abuse of the system will help restore the public’s trust in our court system and strengthen our democracy.”

Judicial advocacy group Demand Justice said the reform introduced by the Judicial Conference is “long overdue.”

“We will need oversight and reform from Congress to restore legitimacy and balance to our courts,” said the group.

Democratic senators including Sens. Mazie Hirono of Hawaii and Ron Wyden of Oregon have proposed legislation to prevent judge shopping. The Republicans noted in their letter Thursday that Congress rejected a bill in 1999 that would have required cases to be randomly assigned.

Cooper called the Judicial Conference’s announcement “a highly welcome reform that should reduce the amount of judicial overreach in this country,” but also “an indicator of just how broken the other two branches of government have become, particularly Congress.”

“Ultimately, we can’t expect the judiciary to truly regulate itself,” wrote Cooper. “As Thomas Jefferson once wrote, ‘Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps.’ When feral judges arrogate the powers of Congress to themselves, the legislature is supposed to slap them down. Until it does, the problem of judicial tyranny will remain.”

This work is licensed under Creative Commons (CC BY-NC-ND 3.0).

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