By Nate Raymond
(Reuters) – U.S. Senate Republican leader Mitch McConnell on Thursday criticized adoption of a federal policy designed to curb the practice of “judge shopping” used by conservative litigants to steer cases challenging President Joe Biden’s agenda to judges perceived as sympathetic.
McConnell in remarks delivered on the Senate floor urged the U.S. Judicial Conference, the judiciary’s policymaking body, to reconsider a policy it adopted on Tuesday designed to ensure cases challenging federal and state laws are randomly assigned judges.
“This will have no practical effect in the venues favored by liberal activists, but Democrats are still salivating at the possibility of shutting down access to justice in the venues favored by conservatives,” McConnell said.
He called it an “unforced error” by the 26-member Judicial Conference, which conservative Chief U.S. Supreme Court Justice John Roberts presides over, and said district courts should weigh what is best for their jurisdictions, “not half-baked ‘guidance’ that just does Washington Democrats’ bidding.”
The new policy will require lawsuits seeking to block federal or state laws to be assigned a judge randomly throughout a federal district, rather than staying within the specific court, or division, in which they were filed.
Local court rules had allowed conservatives and others to target small courthouses in Texas with as few one judge, essentially enabling them to effectively choose judges who have reliably ruled in their favor on issues like abortion, immigration and gun control.
The tactic gained national attention after conservative litigants filed a lawsuit before U.S. District Judge Matthew Kacsmaryk – an appointee of President Donald Trump – in the single-judge division of Amarillo, Texas, seeking to suspend approval of the abortion pill mifepristone, which he ordered in April.
The U.S. Supreme Court has allowed the pill to remain on the market while it considers an appeal in the case, set for argument on March 26.
The Texas cases prompted calls from Democratic lawmakers, the Biden administration, the American Bar Association and others for the federal judiciary to change the system to ensure cases challenging national policies are heard by a random judge.
Judicial policymakers in announcing the new policy said it promotes public confidence in the courts by ensuring a litigant cannot pre-select a judge by filing in a one-judge division.
McConnell said the policy did not address the bigger issue of nationwide injunctions issued by a single judge blocking a law, a practice the Republican said had “confounded administrations of both parties with increasing frequency over the past decade” and could be curbed through legislation.
Democratic attorneys general and civil rights groups during Trump’s administration had frequently sued in venues like California’s Northern District, whose courthouses in San Francisco have multiple judges named by Democratic presidents.
Rather than passing legislation to stop nationwide injunctions, McConnell said Democrats had instead convinced the Judicial Conference to adopt a policy that would “keep the injunctions and just restrict the access to conservative judges.”
(Reporting by Nate Raymond in Boston; Editing by Bill Berkrot)