Home / General / Senate Republicans object to moves to take control of the executive branch away from Matthew Kacsmaryk

Senate Republicans object to moves to take control of the executive branch away from Matthew Kacsmaryk

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Millhiser observes that the anti-mifepristone argument was so wholly devoid of merit most of the justices seemed bored by it:

The Supreme Court appeared listless, even bored, during Tuesday’s oral arguments in FDA v. Alliance for Hippocratic Medicine, the case asking the courts to ban the abortion drug mifepristone.

Their frustration with the Alliance case is understandable, since they’ve been dealing with it for nearly an entire year. Last April, after two lower courts issued decisions that would have effectively removed mifepristone from the market, the justices voted 7-2 to leave access to mifepristone intact while this case was being appealed.

One way to stop cases like this from getting to the Court as often would be force litigators like Erin Hawley to file lawsuits with actual judges instead of self-appointed President of the United States of America Matthew Kacsmaryk. As it happens, the Judicial Conference of the United States has taken steps in that direction, and Mitch ‘government by judiciary” McConnell says no beuno:

On Tuesday, the little-known Judicial Conference of the United States — the policymaking arm of the federal judiciary — made some unusual headlines by announcing a new effort to make it harder for plaintiffs in certain lawsuits challenging state or federal policies to hand-pick the specific judge who hears their case. This crackdown on “judge shopping” is long overdue. It has also provoked a rather telling reaction from Republican Sens. Mitch McConnell, John Cornyn and Thom Tillis.

In a letter to the chief judges of all 94 federal district courts on Thursday, the senators urged those jurists to ignore the new policy — which they laid at the feet of Democratic Senate Majority Leader Chuck Schumer — because, in their view, these judges should ignore “partisan battles in Washington, D.C.” But it’s judge shopping itself, not efforts by the judiciary to rein it in, that have become a “partisan battle.” The McConnell/Cornyn/Tillis letter, ironically, only drives that point home.

By way of background, every state has at least one federal district court; some states have as many as four — staffed by somewhere between two and 28 active judges (along with “senior” judges, many of whom still hear cases). To help ensure that litigants don’t have to travel too far to reach their nearest federal courthouse, district courts are further subdivided — so that, in Texas, for instance, the four district courts have a total of 27 divisions. Because of these variations, district courts have long been left to their own devices to decide how to divide cases. And in some parts of the country, especially Texas, the result has been to allow a single judge to hear every case filed in a particular division.

Although this reality isn’t new, plaintiffs have increasingly taken advantage of these “single-judge” divisions to steer nationwide federal policy challenges to specific, ideologically sympathetic judges. For example, the nationwide challenge to the Food and Drug Administration’s approval of mifepristone (one of two drugs used in the most common and safest abortion procedure) was filed in Amarillo, Texas — not a courthouse with any specific connection to mifepristone, but one in which it had a 100% chance of being assigned to a certain Trump-appointed district judge, former anti-abortion advocate Matthew Kacsmaryk. Kacsmaryk remarkably, if predictably, ruled against the FDA’s approval of the drug — an approval that occurred 23 years ago.

If Democrats ever get a governing majority in the Senate again, statutory limits on forum shopping really should be on the table. And while we’re dreaming, so should adding about 20 new seats to the Fifth Curcuit.

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