I think it’s helpful to take a step back and consider the priorities of the Judicial Conference of the United States.
For decades, people on both sides have raised valid complaints about forum shopping in patent and bankruptcy cases. There is not only judge shopping; there is a real judge sale, in which judges invite litigants to bring their cases before their own courts. This is a True a problem that may not make the news, but which concerns many more cases than those brought by the Texas Attorney General. And unlike constitutional or administrative law appeals, which are heard de novo and can be quickly stayed by higher courts, patent and bankruptcy cases are heard with a very deferential standard and tend to stand.
But the Judicial Conference has not adopted a policy to address this issue on which there is bipartisan consensus. Instead, they adopted a policy with the express intent of cracking down on a practice used only on the side of the aisle. These judges were certainly aware of the impact of their policies. But they proceeded anyway.
And I learned that this policy was considered completely incontrovertible. The Judicial Conference has two lists: the consent list and the discussion list. The points in the first list are adopted by acclamation without discussion. The points on this last list are discussed before the vote. The random assignment policy was included in the consent list. It really could be that Everything is fine member of the Judicial Conference thought the issue was so incontrovertible that it didn’t even merit discussion?
The situation is getting worse. Was the policy adopted at the meeting? obligatory OR optional? Judge Sutton said this on Tuesday journalists that the policy was mandatory and would “supersede local standing orders”. But a memo was released Friday suggesting the policy was only optional. What happened? There are two possibilities.
First, the policy, as voted on, was optional, but Judge Sutton got it completely wrong. Second, the policy voted on was mandatory, but after backlash from me and others, they changed course and the mandate became optional.
The first possibility would put Judge Sutton in a bad light, but perhaps it is unfair to make him the scapegoat. The second possibility, however, would throw the entire Judicial conference in bad light. Rather than firmly uphold their policy adopted by acclamation, they cut and ran when the negative press arrived. I’ll take some credit here, because, as usual, I moved the Overton window to set the terms of the debate. If everyone had been in line with what my friend Sam Bray wrote, the policy might never have been changed. Please.
In many ways, this episode illustrates much of what is wrong with the judiciary. People who become judges care deeply and deeply about what others think of them. Indeed, this approach to careerism is the only way to navigate your way through the political process toward lifetime tenure. I’ve written this before, but I’ll say it again: Anyone who truly wants to be a judge for life should be immediately disqualified from holding office. The problem, of course, is that someone has to fill these positions, and it will be difficult to fit people who don’t actually want the job. I am sometimes in favor of term limits for the sole purpose of ferreting out those seeking this lifetime power.
Will there be any congressional oversight of this issue? While courts are generally immune from investigations into their decisions, their work as an administrative body is cast in a very different light. At a minimum, I would be interested to see what kind of research has been done on how often awards at the national or state level result from a single-judge division. Surely such a report was circulated to the judiciary before this unepochal vote. Or did the commission simply vote based on what Schumer or Vladeck said? I would also be interested to see if the policy passed on March 12 was obligatory OR optionaland whether the change was made in response to public pressure. If the Judicial Conference will function as a body responding to political pressure, it should be treated as such.