The Judicial Conference's New "Policy" Demonstrates Why Judges Should Not Make Policy

The way to depoliticize the courts is to depoliticize the courts.

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.

The Judicial Conference's policy is targeted at a very small number of federal judges who have issued nationwide relief against a Democratic administration, which the Supreme Court has consistently stayed. Is it any surprise that most press accounts of this policy include a photo of Judge Matt Kacsmaryk? The Judicial Conference is feeding a media narrative about these rogue Republican judges who are abusing the nationwide injunction.

In some regards, this Judicial Conference proposal reminds me of Justice Barrett's well-intentioned but horribly-misguided concurrence in Trump v. Anderson. Barrett was trying to explain why the Court should avoid politics and turn down the temperature on these sorts of election issues. Of course, her concurrence backfired big-league, and instead highlighted the right-left split on the Court. The Judicial Conference proposal operates in a similar sphere. The judges on that body are attempting to reduce what they see as partisan judge-shopping, and in the process propose a rule that is targeted only at a handful of Republican judges. Ironically, the same judges that the Texas AGs are shopping for, the Judicial Conference is trying to divest of jurisdiction.

Sam Bray, like Chief Judge Sutton and perhaps Chief Justice Roberts, may think that this law removes the judiciary from politics. But that perspective is myopic. The choice of how district courts are divided is an inherently political topic. The process of selecting district court judges is more complex than you can probably imagine. Perhaps Sutton and Roberts are fearful of potential legislation and would prefer to handle things in house. Again, this perspective is myopic. Who decides? If any body must inject itself into this mess, it's Congress. And if Congress won't act, as we are often told, it is not for the judiciary to clean up the mess. The way to depoliticize the courts is to depoliticize the courts.