During former President Donald Trump’s second term, several left-wing interest parties ran to authorities chock-full of communist federal courts in, among other places, California, Hawaii, and Washington state. There was no question that these organizations would draw a judge who was ideologically similar to them because of the Senate’s “blue slip” policy, an unwritten rule that allows home-state senators to veto nominees for district courts. These district court judges then proceeded to issue sweeping injunctions after sweeping injunctions, and the Department of Justice appealed against various Trump policies for years. These left-wing groups either stopped, or at least significantly stalled, many Trump policies.
When Joe Biden took office, shrewd Republicans slammed their own legal defenses. 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. The Northern District of Texas ‘ Amarillo Division is one of these divisions. That division has precisely one active judge: Matthew Kacsmaryk.
Judge Kacsmaryk has riled leftists by making numerous decisions that have prohibited Biden’s policies. He cites, for instance, the Food and Drug Administration’s unlawful approval of the mifepristone abortifacient. Judge Kacsmaryk’s decision was ultimately overturned by the U.S. Supreme Court, and because he had the humility to stay it, it never came into effect.
Push to assign cases at random
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. All the nation’s district courts were advised by the Judicial Conference earlier this year, which recommended that all cases be randomly assigned throughout the district in which they are filed, regardless of the division that received the filing.
Conservatives have legitimately protested this covert use of ideological power. 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 Rules Enabling Act, a statute from the 1930s that authorizes the Judicial Conference to prescribe rules of civil and criminal procedure for the federal judiciary, is where the Judicial Conference claims to find this authority.
However, Congress has the ultimate authority to reject any rule that is approved by the Rules Enabling Act, not the judiciary. Should the Judicial Conference succeed in passing its single-judge division edict, Congress should not hesitate to exercise such power.
Left’s Effort to Decimate Judicial Norms
Regardless of the outcome of the election, it is crucial to applaud the left’s most recent effort to end long-standing judicial precedents because leftists are angry that their decisions are n’t always being made in case decisions. This attempt echoes Justice Elena Kagan’s desperate and ridiculous request for lower federal courts to supervise the Supreme Court when making recusal appeals. The proposal that is currently being considered by the Rules Committee of the Judicial Conference clings to the whining of leftist commentators upset over politically charged rulings. It is a blatant abuse of political power.
The Supreme Court must put its foot down in the event that the Rules Committee decides to accept the proposal. The court has recently been the target of numerous prominent political and physical attacks because the justices have been ruling numerous decisions that leftists detest. 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. In his courtroom, defendants seeking leftist results have repeatedly filed cases. There have n’t been any changes to the Judicial Conference rules. No Senate leaders protested. There was no disapproval resolution adopted by the American Bar Association. Funny how that works!
Should Congress take action?
Congress has the power to act and has the means 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. Before the Judicial Conference agrees that the House Judiciary Committee’s decision to not affect the case-assignment process through its Deep State committees, the committee should decline to take action on either bill. The Judicial Conference should demand that it seek new authorizing legislation to avoid coming into 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 judges like Paxton are selecting a particular judge, but leftist filings in areas that are overwhelmingly populated by rabid leftists are completely undistinguishable. 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 making maniacal attacks on the Supreme Court, giving the justices ‘ recusal decisions to the dictates of lower courts, and spreading many other radical ideas. All pose a serious threat to judicial independence, similar to the legal challenges that President Franklin D. Roosevelt faced in the late 1930s when his New Deal legislation suffered legal reversals. The Supreme Court and Congress must reject these new attempts, including the Judicial Conference’s proposal to eliminate the use of single-judge divisions in politically charged cases, just as a Congress dominated by Democrats rejected Roosevelt’s dangerous court-packing power grab.
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.