The Volokh Conspiracy

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Progressive Groups to Senator Durbin: Judicial Conference "Watered Down" and "Bow[ed] Down" To Opposition

Now, for better or worse, the Judicial Conference has shown itself to be pliable by the political currents.


Yesterday, I wrote that the Judicial Conference's policy is dead-dead. Placing the final nail in the coffin was a cohort of progressive groups who wrote to Senator Dick Durbin, chair of the Senate Judiciary Committee.

The letter accuses the Judicial Conference of backing down from their initial proposal to mandate the policy across the districts:

We are deeply concerned that, after announcing efforts to combat this practice, the Judicial Conference appears to have watered down its commitment to addressing judge shopping in response to attacks from Republican senators and their allies in their right-wing legal movement. . .  Troublingly, the Judicial Conference appeared to bow down to this opposition just three days later by stressing it was merely providing optional guidance that courts could do with as they will.

I'm pretty sure that I am one of those allies in the "right-wing legal movement."

The letter also tries to point to Chief Justice Roberts and Judge Sutton as proof this is a bipartisan issue:

Despite the fact that the Judicial Conference is led by a Republican-appointed Chief Justice of the United States and the policy was announced by a Republican-appointed Court of Appeals Judge – underscoring that judge shopping is not a partisan issue …

Here is what I still do not know. Was it the case that Judge Sutton accurately described the policy to the press as mandatory, and the Judicial Conference backed off? Or did did Judge Sutton inaccurately describe the policy, and subsequent guidance was issued to clarify the matter?

I am very skeptical the latter option is the right one. Judge Sutton is a careful lawyer, above all else, and I have difficulty imagine he would misunderstand a policy, or worse, mislead the press.

The former option seems more likely to me.  He accurately described the policy on Monday, but the policy was later revised. (One reporter I spoke with recorded Judge Sutton's press call, but I have not obtained a copy, yet.)

If it is the former option, then in fact the Conference caved to political pressure from the right–in much the same way that the initial policy itself was a cave to political pressure from the left. This option does not speak well of these judges. Either this policy was indubitably correct, in which case the Judges should have stood behind it. Or the policy was a mistake from the get go, in which case it should have never been put forward, let alone without any discussion. Now, for better or worse, the Judicial Conference has shown itself to be pliable by the political currents. It would have been much better if the conference stayed out of this thicket from the outset.

If the Senate Judiciary Committee tries to conduct oversight from the left on single-judge divisions, then the House Judiciary Committee may conduct oversight from the right on the process by which this policy was adopted. I don't think anything good will come from such proceedings.