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.
In a message that I think was tailored to Judge Sutton, the Senators explain that Congress should decide this issue:
To state the obvious, Judicial Conference policy is not legislation. It is Congress that decides how cases should be assigned in the inferior comts and Congress has already spoken on this issue in an enacted statute: Congress gave that power to the individual district courts. Whatever the Judicial Conference thinks you ought to do, what you actually choose to do is left to your court's discretion under the law.
It is significant that Senator Tillis signed the letter. The press release cited a letter that Tillis sent along with Senator Leahy, who "raised concerns about a concentration of patent cases filed in single-judge divisions." This reference to Tillis and Leahy was an effort to give the proposal a patina of bipartisanship. But the policy says nothing at all about patent forum shopping. It only addresses nationwide injunctions. I have to imagine that Tillis was unhappy to be dragged into this mess. Again, when Judges try to be apolitical, they usually have the exact opposite effect.
Moreover, the policy says nothing about bankruptcy forum shopping. This is an issue that Senator Cornyn, in particular, has been writing about for nearly two decades; see his op-ed to Senator Biden's response from 2005. And with bankruptcy and patent cases, decisions are reviewed with deferential standards of review. By contrast, APA and constitutional law issues are reviewed de novo, and channels exist to seek emergency stays from the Court of Appeals and the Supreme Court. If the Judicial Conference was serious about addressing a real problem, they would have started with patent and bankruptcy reform. But the real law professors of Twitter don't care and the trial bars enjoy these cushy forums too much, so these issues are not a priority.
McConnell gave a speech on the Senate floor that I think got things exactly right:
"But, Mr. President, didn't Chief Justice Roberts say, quote, 'there are not Obama judges or Trump judges'? What, exactly, is the problem that demands such a drastic solution?
"Here's what this policy won't do: it won't solve the issues caused by nationwide injunctions. If Democrats are right about the practical effects of this policy, any remaining incentive they have to work with Republicans on this issue will vanish.
"'Nationwide injunctions for me, but not for thee'.
"And, needless to say, 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.
"This was an unforced error by the Judicial Conference. I hope they will reconsider. And I hope district courts throughout the country will instead weigh what is best for their jurisdictions, not half-baked 'guidance' that just does Washington Democrats' bidding."
I too hope the Judicial Conference reconsiders this proposal.
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