I think it is helpful to take a step back and consider the priorities of the Judicial Conference of the United States.
For decades, people on both sides of the aisle have raised valid complaints about forum shopping in patent and bankruptcy cases. There is not just judge shopping; there is actual judge selling, in which judges invite litigants to file in their courts. This is a real problem that may not garner headlines, but affects far more cases than those brought by the Texas Attorney General. And unlike with constitutional or administrative law challenges, which are reviewed de novo, and can be stayed by higher courts quickly, patent and bankruptcy cases are reviewed with a very deferential standard, and tend to stand.
But the Judicial Conference did not adopt a policy to address this issue on which there is bipartisan consensus. Instead, they adopted a policy with the express intent to clamp down on a practice used on only side of the aisle. These judges were surely aware of the impact of their policy. But they proceeded anyway.
And I've learned this policy was viewed as utterly uncontroversial. The Judicial Conference has two lists–the consent list and the discussion list. Items on the former list are adopted by acclamation without any debate. Items on the latter list are discussed before the vote. The policy on randomized assignments was placed on the consent list. Could it really be that every member of the Judicial Conference thought this issue was so uncontroversial that it didn't even warrant a discussion?
It gets worse. Was the policy adopted at the meeting mandatory or optional? On Tuesday, Judge Sutton told reporters that the policy was mandatory, and would "supersede local standing orders." But by Friday, a memorandum was released suggesting the policy was only optional. What happened? There are two possibilities.
First, the policy, as voted on, was optional, but Judge Sutton completely messed up. Second, the policy as voted on was mandatory, but after the blowback from me and others, they changed course, and the mandate became optional.
The first possibility would cast Judge Sutton in a bad light, but maybe it is unfair to make him the scapegoat. The second possibility, however, would cast the entire Judicial Conference in a bad light. Rather than standing strong behind their policy adopted by acclamation, they cut and ran when negative press came in. I will take some credit here, because, as usual, I shifted the Overton window to set the terms for debate. If everyone fell in line with what my friend Sam Bray wrote, the policy may never have been changed. You're welcome.
In many regards, this episode illustrates much that is wrong with the judiciary. People who become judges care deeply and profoundly what others think about them. Indeed, this approach to careerism is the only way to navigate oneself through the political process to a lifetime appointment. I've written this before, but I'll say it again: anyone who actually wants to be a lifetime judge should be immediately disqualified from holding the position. The problem, of course, is that someone has to hold these positions, and it will be difficult to slot in people who don't actually want the job. At times I favor term limits for the sole purpose of sussing out those who seek this lifetime power.
Will there be any oversight from Congress on this matter? While the courts are generally immune from inquiries about their decisions, their work as an administrative body stands in a very different light. At a minimum, I would be interested to see what sort of research was done on how often nationwide or statewide relief resulted from a single-judge division. Surely such a report was circulated to the judiciary in advance of this non-momentous vote. Or did the committee just vote based on claims from Schumer or Vladeck? I would also be interested to see whether the policy approved on March 12 was mandatory or optional, and whether a change was made in response to public pressure. If the Judicial Conference will operate as a body that responds to political pressure, it should be treated as such.
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