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Judge Shopping May Still Be a Going Issue

As we have noted, the Judicial Conference of the United States (JCOTUS) adopted a guideline that judicial circuits should assign cases at the district level rather than the division level. This would mean that any given case could land on the docket of any of the 12-20 judges in a district, as opposed to the numerous divisions where a case can only land on the docket of one or two judges. This was an effort to limit judge shopping, which undermines the integrity of the system. And the particular judge that everyone had in mind was Matthew Kacsmaryk, the staunchly conservative only-judge-in-his-Texas-division who is a popular choice for judge-shopping Republicans, particularly Texas AG Ken Paxton.

The United States District Court for the Northern District of Texas took notice of JCOTUS' suggestion, said "Thanks, but no thanks," and indicated that business would continue as usual. However, it appears that may not be the end of it, as there is still relevant movement on two fronts.

The first front is the JCOTUS itself, which may take a second look at the issue, and may decide to make the guideline into a formal rule. The Chair of JCOTUS, Chief Justice John Roberts, would prefer that compliance be voluntary, but he also realizes this practice is seriously weakening the credibility of the judicial branch. So, he might bring the hammer. Well, the gavel. JCOTUS only meets twice a year, though, so it will be a while until we learn what they've decided.

Meanwhile, there are dueling bills in the Senate. Chuck Schumer has put forward a bill that would codify the JCOTUS recommendation. It's attracted 39 co-sponsors, but none from the Republican side of the aisle. So, it's not likely to become law unless the filibuster is abolished. Meanwhile, Senate Minority Leader Mitch McConnell (R-KY) has read the tea leaves and, interestingly, decided that his side of the issue might have a problem here, and could lose a key tool in their toolkit. So, he's offered up a "compromise" bill of sorts that would keep the judge shopping, but would forbid circuit judges from issuing national injunctions. So, for example, Kacsmaryk would be able to ban mifepristone in Texas, but not in Michigan. Thus far, McConnell's bill has attracted very little support, but it is an interesting sign that his spidey-sense (turtley-sense?) is tingling here.

So, this remains a question worth watching. (Z)

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