'Why are these three Republican senators so upset?' Expert slams GOP’s defiance of new judicial rule

17 March 2024

Earlier this week, CNN reported that the Judicial Conference of the United States announced a new rule that would that would shut down "judge shopping" — a tactic conservative attorneys general and conservative litigants have used to file challenges against liberal policies and laws.

The new policy requires federal district courts to "randomly assign a judge to a lawsuit if the suit aims to block any federal or state law, executive order or regulation," the Hill reports.

"I’m really proud that we did this," 6th Circuit Chief Judge Jeffrey Sutton said in response to the announcement.

However, according to the Associated Press, two days later, Senate Minority Leader Mitch McConnell (R-KY) condemned the move "on the Senate floor and joined with two other GOP senators to send letters to a dozen chief judges around the country suggesting they" ignore it.

In a Sunday, March 17 op-ed published by MSNBC, University of Texas School of Law professor Steve Vladeck points out the hypocrisy in not only McConnell's — but US Senator John Cornyn's (R-TX) and Thom Tillis' (R-NC) — opposition to the rule, too.

"So why are these three Republican senators so upset by the proposed reform?" Vladeck asks. "The answer is obvious: because it will make it harder to guarantee that specific judges will hear specific lawsuits — whether individual Republican appointees hearing challenges to Democratic policies, or vice versa."

Vladeck writes:

Plaintiffs have increasingly taken advantage of these 'single-judge' divisions to steer nationwide federal policy challenges to specific, ideologically sympathetic judges. For example, the nationwide challenge to the Food and Drug Administration’s approval of mifepristone (one of two drugs used in the most common and safest abortion procedure) was filed in Amarillo, Texas — not a courthouse with any specific connection to mifepristone, but one in which it had a 100% chance of being assigned to a certain Trump-appointed district judge, former anti-abortion advocate Matthew Kacsmaryk. Kacsmaryk remarkably, if predictably, ruled against the FDA’s approval of the drug — an approval that occurred 23 years ago.

Another example the Just Security blog co-founder notes:

A nationwide challenge to Biden administration efforts to combat social media disinformation was filed in Monroe, Louisiana — where it had a 100% chance of being assigned to Trump-appointed U.S. District Judge Terry Doughty. And the state of Texas, which has filed 37 different lawsuits in Texas district courts challenging Biden administration policies, has filed a majority of them in single-judge divisions — and none in Austin (where the Texas government is actually located) or Houston or Dallas or … you get the point.

Vladeck emphasizes, "The charge from McConnell, Cornyn and Tillis that the Judicial Conference is engaged in 'partisan' behavior rings more than a little hypocritical. The whole point of the proposal is to reduce the appearance of partisanship on the part of the federal courts."

Vladeck's full op-ed is available at this link.

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