By Nate Raymond
(Reuters) -U.S. Senate Republicans on Thursday pushed the federal judiciary to rethink a new policy designed to curb the practice of “judge shopping” used by conservative litigants to steer cases challenging President Joe Biden’s agenda to judges perceived as sympathetic.
Senate Minority Leader Mitch McConnell on the Senate floor said he hoped the U.S. Judicial Conference, the judiciary’s policymaking body, would reconsider the “half-baked” policy it adopted on Tuesday designed to ensure that cases challenging federal and state laws are randomly assigned judges.
McConnell called it an “unforced error” by the 26-member Judicial Conference, which he said “took the bait” from Democrats who complained about lawsuits by conservative litigants in single-judge courthouses, or divisions, in Texas with Republican-appointed judges.
The Judicial Conference is presided over by conservative Chief U.S. Supreme Court Justice John Roberts.
Under the new policy, lawsuits seeking to block federal or state laws would not remain in such a single-judge division but instead be assigned a judge randomly throughout a larger federal district.
“This will have no practical effect in the venues favored by liberal activists, but Democrats are still salivating at the possibility of shutting down access to justice in the venues favored by conservatives,” McConnell said.
In letters sent to several chief judges of district courts affected by the policy, McConnell, of Kentucky, and Republican Senators John Cornyn of Texas and Thom Tillis of North Carolina urged them to continue their existing practices, citing a statute they said gave the local courts sole discretion to decide how cases are assigned.
The Administrative Office of the U.S. Courts, the judiciary’s administrative arm, did not respond to a request for comment.
Republican state attorneys general and activists had seized on local rules in Texas to sue in small courthouses in the state whose one or two judges were appointed by Republican presidents, enabling them to essentially choose judges who have reliably ruled in their favor on issues like abortion, immigration and gun control.
In one of those cases, U.S. District Judge Matthew Kacsmaryk – an appointee of Republican former President Donald Trump – in the single-judge division of Amarillo, Texas, in April suspended approval of the abortion pill mifepristone.
The U.S. Supreme Court has allowed the pill to remain on the market while it considers an appeal in the case, set for argument on March 26.
The Texas cases prompted calls from Democratic lawmakers, the Biden administration, the American Bar Association and others for the judiciary to ensure cases challenging national policies are heard by a random judge.
Judicial policymakers in announcing the new policy said it promotes public confidence in the courts by ensuring a litigant cannot pre-select a judge by filing in a one-judge division.
The chair of the Judicial Conference’s executive committee, conservative U.S. Circuit Judge Jeffrey Sutton, on Tuesday called the policy a “good idea.”
But some conservative judges have criticized the policy change, and McConnell on Thursday said it did not address the real issue, which he said is increasing instances of a single judge issuing injunctions blocking federal policies nationwide, rather than just the judge’s own jurisdiction.
That occurred frequently during Trump’s administration in cases that Democratic state attorneys general and others filed in venues like California’s Northern District, but those courthouses have multiple judges who could be randomly assigned cases.
McConnell said rather than working with Republicans to “eliminate a practice that gores the oxen of both parties,” Democrats convinced the Judicial Conference to adopt a policy that will “just restrict the access to conservative judges.”
McConnell will leave his leadership position following the November elections, in which Republicans hope to retake control of the Senate. In Thursday’s speech, he did not call for legislation to reverse the Judicial Conference’s policy.
But he warned that “if Republicans see a federal judiciary that is using its procedural independence to wade into political disputes, any incentive we may have to defend that procedural independence will vanish, as well.”
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