It is a cliche that judges should not "legislate" from the bench. As we hear all-too-often, judges lack the expertise, knowhow, and accountability to make policy. Judges are at their best when they carefully scrutinize a law someone else wrote, and apply it to a given set of facts. To be sure, judges do have some formal policymaking power, such as the promulgation of the Federal Rules of Civil Procedure or the Federal Rules of Appellate Procedure. But those processes are transparent, open, and involves a public comment period from all interested stakeholders.
The Judicial Conference's new "policy" illustrates why judges are not equipped to make policy on their own. (I put "policy" in scare quotes because we have no idea what the policy actually says, or if the language is even final.) Though this policy is framed as addressing some sort of nationwide policy, in reality, it will affect a handful of single-judge divisions in Texas and Louisiana, and possibly a few other states. All of those judges were appointed by Republican presidents, and most were nominated by President Trump. And almost all of the appeals lie with the Fifth Circuit.
My friend Sam Bray is correct that "Democratic state attorneys general seek national injunctions in friendly district courts," but as best as I can recall, Democratic Attorney Generals do not seek nationwide injunctions in single judge divisions–they don't have to. Filing a law suit in Brooklyn or San Fransisco has the same effect as filing in Amarillo or Lubbock–without the need for a layover in DFW.
