Federal judges have ruled against the Biden administration in several recent high-profile cases, and those on the Left are not happy about it. Instead of defending their policies on the merits in front of these judges, those on the Left have instead pressured the principal policy-making body for the federal judiciary to change how cases are assigned to those judges. Sadly, that body bowed to the pressure and created new guidance for assigning certain cases—all to soften the criticism coming from the Left.
The Judicial Conference of the United States serves as the “principal policy-making body” for the federal judiciary. The chief justice heads the conference, and other judges from various lower federal courts serve as members alongside him.
Chief Justice John Roberts has explained that Congress created the Judicial Conference just over a century ago to help ensure the “efficient administration of justice in the courts” and to create “managerial policy for the Judiciary.”
But surely Congress never intended for the conference to engage in politics by trying to circumvent statutes that Congress itself drafted and that the president signed into law governing how the judiciary should operate.
Yet that’s exactly what happened last week when the conference adopted and distributed its updated “Guidance for Civil Case Assignment in the District Courts.”
This innocuous-sounding name masks the true intent behind the Judicial Conference’s problematic political play. Essentially, by adopting this new policy, the Judicial Conference has sought to silence criticism from those on the Left, like Senate Majority Leader Chuck Schumer, and in the process, has done Schumer’s dirty work for him.
All of this stems from several recent decisions in high-profile cases where certain judges have ruled against the Biden administration. While some of those decisions have withstood review by higher courts, others have not.
Undeterred, those on the Left don’t want to risk facing a judge who might rule against them and have instead called for changes to how cases are assigned to avoid facing these judges. While they paint those on the Right as having engaged in “judge shopping” by bringing certain cases in front of certain judges, that’s really what they’re doing now by trying to keep certain cases away from certain judges. And the Judicial Conference has aided them in this effort.
Consistent with the Constitution, Congress established the lower federal courts and enjoys broad discretion in regulating them. It put in place a statute empowering local district courts to set case assignment rules for cases that come before them. If those local courts can’t agree on a rule, the relevant appellate court can step in and set the rules for them. Nowhere can the Judicial Conference set the case assignment rules. Congress didn’t give them this authority.
Confusion initially reigned over whether the Judicial Conference purported to require courts to follow its new policy, or just strongly recommended it—though it’s obvious they can only do the latter.
Stepping back even further, though, it’s clear that by trying to insert the judiciary into the political process and ostensibly make the courts less political, the conference’s action has done just the opposite.
Rather than forcing Congress to vigorously and publicly debate changes to the current statute governing case assignments in federal district courts, the conference jumped into the fray and made the change itself—sparing Schumer from having to publicly debate the merits of his proposed policy changes.
Of course, this drew the ire of Republican senators in the process—though this move should draw the ire of all who care about judges being apolitical.
Showcasing the lack of need for the Judicial Conference’s policy, the three federal district courts in Alabama released a report before the Judicial Conference’s policy became public, showing that the lower federal courts can appropriately deal with judge shopping when it happens. The judges noticed a problematic practice, convened a panel of various judges to investigate, and issued findings.
Ironically, that panel found judge shopping and ethically problematic behavior coming principally from left-leaning attorneys from entities such as the Southern Poverty Law Center, LGBTQ Legal Advocates & Defenders, the National Center for Lesbian Rights, the ACLU Foundation, ACLU of Alabama, Lambda Legal, and several private law firms.
Sadly, this isn’t the only instance where the Judicial Conference has taken controversial positions with political overtones. As I’ve previously lamented, “the reports of the Judicial Conference’s various committees are rife with references to programs under consideration to increase the diversity of staff and employees.” That raises questions about whether these programs comport with the Supreme Court’s recent decisions striking down racial preferences.
The Judicial Conference should stick to advising courts on best practices and not engaging in politicking under the guise of making supposedly noncontroversial administrative policy recommendations.
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