The fallout from the Judicial Conference "policy" continues. (What that policy is, I still cannot tell you, since it is not publicly available, so I'll continue to rely on the press release.) In previous posts, I explained that it is for Congress, and not the courts, to determine how to handle this mess. And recent communications from three Senators demonstrate this point. Senators McConnell, Cornyn, and Tillis sent a letter to chief judges throughout the country, including to Chief Judge David Godbey of the Northern District of Texas. (I previously wrote about Senator Schumer's letter to Godbey, and Godbey's reply.)
The Senators explain that "The assignment of cases within district courts is governed by federal statute." As I explained my earlier post, 28 U.S.C. 28 U.S.C. § 137(a) gives each District Court, and not the Judicial Conference, power to adopt rules about assignment. The Senators point out that there was an attempt to modify Section 137(a) to "require random assignment," but this bill does not pass. From what I've gathered, this policy is at most "subregulatory guidance" that the lower courts can consider. That is not the message that was conveyed to the media.
And for that matter, why was the media given a private briefing by Judge Sutton? Is that common for a single federal judge to speak to the press at length about a policy that no one outside the judiciary has seen? In some regards, I see the press rollout of this policy as a way to "lock in" votes, hoping that the media inertia is strong enough to persuade everyone to go along with it–to create an air of inevitability. And if any district courts reject the proposal, the fault will be placed on these rogue judges, and not the Judicial Conference.
