Yesterday I wrote that the policy of the Judicial Conference is dead. Putting the final nail in the coffin was a cohort of progressive groups who wrote to Senator Dick Durbin, chairman of the Senate Judiciary Committee.
The letter accuses the Judicial Conference of backtracking from their initial proposal to impose the policy on all districts:
We are deeply concerned that, after announcing efforts to combat this practice, the Judicial Conference appears to have done so watered down his commitment to addressing judge shopping in response to attacks from Republican senators and their allies in the right-wing legal movement. . . Worryingly, the Judicial Conference appeared to do so to bow to this opposition, just three days later, pointing out that it was simply a matter of providing optional guidance that the courts could do with as they pleased.
I’m pretty sure I’m one of those allies of the “right-wing legal movement.”
The letter also seeks to cite Chief Justice Roberts and Justice Sutton as evidence that 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 that the policy was announced by a Republican-appointed Court of Appeals judge – emphasizing that Judge Shopping is not a matter of part…
Here’s what I don’t know yet. It is perhaps true that Judge Sutton accurately described this policy to the press obligatory, and the Judicial Conference backed down? Or did Judge Sutton inaccurately describe the policy and were guidelines subsequently issued to clarify the matter?
I’m very skeptical, this last option is the right one. Judge Sutton is a careful lawyer, above all else, and I have a hard time imagining that he would misunderstand a policy or, worse, mislead the press.
The first option seems more likely to me. It described the policy accurately on Monday, but the policy was later revised. (A reporter I spoke to recorded Judge Sutton’s press conference, but I have not yet obtained a copy.)
If it is the first option, then the Conference has effectively succumbed to political pressure from the right, in much the same way that the initial policy itself was a submission to political pressure from the left. This option does not speak well of these judges. Either this policy was undoubtedly correct, in which case the judges should have upheld it. Or the policy was a mistake from the start, in which case it should never have been proposed, much less without any discussion. Now, for better or for worse, the Judicial Conference has proven docile to political currents. It would have been much better if the conference had stayed out of this mess from the start.
If the Senate Judiciary Committee attempts to exercise left-wing control over single-judge divisions, then the House Judiciary Committee can exercise right-wing control over the process by which this policy was adopted. I don’t think anything good will come of such a process.