During former President Donald Trump’s first term, many left-wing interest groups ran to courts chock-full of leftist federal judges in, among other places, California, Hawaii, and Washington state. Because of the Senate’s “blue slip” policy — an unwritten rule that allows home-state senators to veto district court judicial nominees — there was no real doubt that these groups would draw a judge ideologically similar to them. These district court judges proceeded to issue sweeping injunction after sweeping injunction, and various Trump policies were bogged down for years as the Department of Justice appealed. These left-wing groups either stopped, or at least significantly stalled, many Trump policies.
When President Joe Biden assumed office, shrewd Republicans fired off their own litigation shots. Texas’s firebrand attorney general, Ken Paxton, has been particularly successful in procuring injunctions in certain Texas-based federal courts against Biden’s myriad overreaches. Furious, leftists are now seeking to thwart Paxton by taking away a tool he has utilized to great effect: the single-judge division.
Congress divides federal district courts by state, district, and division. For instance, the state of Illinois has three districts: the Northern, Southern and Central Districts. Within the Northern District, there are two divisions: the Western Division, based in the small city of Rockford and with only one active judge; and the much larger Eastern Division, with around two dozen active judges in Chicago. Likewise, Texas has several districts and, within each one, there are many divisions. One such division is the Amarillo Division of the Northern District of Texas. That division has precisely one active judge: Matthew Kacsmaryk.
Judge Kacsmaryk has enraged leftists with several rulings that have enjoined Biden administration policies. For instance, he ruled that the Food and Drug Administration had approved the abortifacient mifepristone in an unlawful manner. The U.S. Supreme Court ultimately reversed this decision, and Judge Kacsmaryk’s ruling never took effect because he had the humility to stay it.
Push to Randomly Assign Cases
Nevertheless, left-wing activists are now attempting to use the Judicial Conference, the supervisory body that essentially acts as the federal judiciary’s own Deep State, to end the use of single-judge divisions in all cases of injunctions against the federal or state government. Earlier this year, the Judicial Conference issued “advisory guidelines” to all the nation’s district courts, recommending that all cases be randomly assigned throughout the district in which they are filed — regardless of the division that actually receives the filing.
Conservatives have properly protested this thinly veiled ideological power grab. Senate Minority Leader Mitch McConnell, R-Ky., for instance, reminded the Judicial Conference that the legally relevant congressional statute — 28 U.S.C. § 137 — clearly vests district courts with the power to decide how to divvy up their own case assignments.
Now, just weeks before a monumental election, leftists have once again ramped up their efforts to ram through a rule in the Rules Committee of the Judicial Conference that would make the previously “advisory” guidance outright mandatory, thus caving to the demands of, among others, Senate Majority Leader Chuck Schumer, D-N.Y., and the Biden Justice Department. The Judicial Conference purports to locate such authority in the Rules Enabling Act, the 1930s-era statute that authorizes the Judicial Conference to prescribe rules of civil and criminal procedure for the federal judiciary.
But Congress — not the judiciary — has the ultimate power to reject any rule promulgated by the Rules Enabling Act. Congress should not hesitate to exercise such power, should the Judicial Conference succeed in pushing through its single-judge division edict.
Left’s Effort to Decimate Judicial Norms
But regardless of the election result, it is crucial to flag the left’s latest effort to decimate long-standing judicial norms simply because leftists are furious that they are not consistently getting their way in case outcomes. This attempt mirrors Justice Elena Kagan’s desperate and ludicrous call for lower federal courts to supervise the Supreme Court when it comes to recusal decisions. The proposal now before the Judicial Conference’s Rules Committee caves to the whining of leftist commentators upset over politically charged rulings. It is a nakedly political power grab.
Should the Rules Committee adopt the proposal, the Supreme Court needs to put its foot down. Because the justices have been issuing many decisions that leftists detest, the court in recent years has been subject to numerous high-profile political and physical attacks. Justices’ homes have been constant targets of protest, and Nicholas Roske, a leftist pro-abortion activist from California, attempted to assassinate Justice Brett Kavanaugh and his family after the May 2022 leak of the draft majority opinion in Dobbs v. Jackson Women’s Health Organization, which restored the power of legislatures to regulate abortion.
Justices have also faced frivolous ethics complaints. For instance, leftists have demanded that Justice Samuel Alito recuse from January 6-related cases based on his wife’s personal flag-flying preferences. The Judicial Conference’s proposed single-judge division elimination effort is yet another such attack. For many years, Judge William Wayne Justice, a hardcore left-wing jurist in Tyler, Texas, operated a single-division court. Litigants seeking leftist results repeatedly filed cases in his courtroom. No Judicial Conference rules change occurred. No Senate leaders protested. The American Bar Association adopted no resolution of disapproval. Funny how that works!
Congress Should Act
Congress can also act — and has the leverage to do so. Right now, the Judicial Conference wants the U.S. House to pass two separate judge-related bills. One of those bills would authorize about 66 new federal judgeships; the other would extend some temporary judgeships. The House Judiciary Committee should refuse to act on either bill until the Judicial Conference agrees it will not alter the case-assignment process through its Deep State committees. Congress should demand that if the Judicial Conference wants changes to case-assignment procedure, it will seek new authorizing legislation so as to not create a conflict with 28 U.S.C. § 137. Congress, which alone writes federal law under our Constitution, must shut down the Judicial Conference’s highly dubious Rules Enabling Act legal theory of delegated power.
Fact is, if one side can use lawful tools to stop or delay a president’s policies, then the other side must have the same opportunity. Leftists attempt to distinguish the current situation because litigants like Paxton are picking a particular judge — but leftists’ filing in districts universally populated with fellow rabid leftists is entirely indistinguishable. Intellectual consistency, alas, is not always the left’s strong suit.
The past few years have been miserable ones for left-wing legal observers, who have seen so many of their once-treasured victories eroded or overturned. They are now lashing out with maniacal proposals to pack the Supreme Court, subordinate the justices’ recusal decisions to the whims of lower courts, and many other radical ideas. All represent a grave threat to judicial independence akin to that lodged by President Franklin D. Roosevelt in the late 1930s, when his New Deal legislation suffered legal setbacks. Just as a Congress dominated by Democrats rejected Roosevelt’s dangerous court-packing power grab, so too must the Supreme Court and Congress reject these new attempts — including the Judicial Conference’s proposal to eliminate the use of single-judge divisions in politically charged cases.
Josh Hammer is Newsweek senior editor-at-large, host of “The Josh Hammer Show” and “America on Trial with Josh Hammer,” and senior counsel for the Article III Project.
