There is arguably no institution in this country more consequential than the federal judicial system, and none that has been as pervasively corrupted by the Republican Party. Last week, for example, the Judicial Conference of the United States, the policymaking arm for the federal judiciary, backhandedly acknowledged that corruption when it unveiled a plan—for a full 72 hours at least—to end the widespread practice of “judge shopping.” This practice is now routinely employed by conservative think tanks and right-wing lobbyists to judicially “legislate” social issues that they cannot legitimately achieve through the ballot box.
The practice targeted was the selective filing of cases within a judicial district with the intent of assigning the case to a specific judge known to be receptive to the right’s pet issues. This practice has been blatant. Over the past four years, right-wing organizations have flocked to file their actions in (for example) divisions of the Northern District of Texas to get them heard by right-wing proponent Matthew Kacsmaryk, a Trump-appointed judge who basically acts as a rubber-stamp for the forced-birth lobby. The same phenomenon has occurred in the Southern District of Texas, where challenges to the Biden administration’s immigration policies are almost exclusively heard by Trump-appointed judge Drew Tipton.
The conference’s actions were initially applauded as a concrete effort to curb such practices. However, the fierce backlash from the same right-wing judges and the Republican legislative enablers who had installed them—notably Senate Minority Leader Mitch McConnell—was as immediate as it was effective. By Friday, in direct response to right-wing criticism, the conference timidly issued new guidance for its policy. (The policy had proposed the random assignment of civil cases with statewide or national significance as opposed to immediately channeling them into the dockets of specific, handpicked judges.)
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The backpedaling by the conference (made up of 26 judges and presided over by Chief Justice John Roberts) was as instructive as it was craven: No, this was not a new policy, they soothingly assured, it was simply a set of “guidelines,” and those judges were free to ignore them at their “discretion.”
And by all appearances that’s exactly what they’ll do. Because contrary to what Americans might otherwise expect, a substantial segment of the federal judiciary is now in practice merely a particularly virulent arm of the Republican Party. And conservatives clearly intend to keep it that way, whether the rest of the nation likes it or not.
The judges who objected to the conference’s new policy were (predictably) among some of those who enabled the problem it sought to address in the first place. As reported by Tobi Raji for The Washington Post, extremist James Ho, a former Texas solicitor and far-right Trump appointee who now wields his judicial scythe within the “rogue” Fifth Circuit Court of Appeals, chortled merrily at the hapless conference:
“Judges should follow the law, and leave the politics to Congress,” U.S. [Circuit] Judge James Ho said in an email. “The last thing we should do is gerrymander the rules to favor one particular political viewpoint.”
That’s particularly rich coming from a political hack like Ho. He is the judge responsible for inventing the notion that sensitive doctors whose patients might wish to use the legal abortifacient mifepristone would suffer an “aesthetic” injury. This would be brought about by their heartfelt sorrow at knowing one of their patients could terminate a pregnancy all by themselves, in defiance of their doctor’s religious convictions. On the short list of Donald Trump’s Supreme Court nominees should Trump win election in 2024, Ho’s appellate position wasn’t even impacted by the conference’s action. Nevertheless he (somewhat curiously) felt compelled to speak out against it.
As Raji reports, other Texas federal judges—all of them appointed by Republicans—objected as well. Randy Crane, chief judge of the Southern District of Texas (a Bush appointee), huffed that the council could not override federal law, which places responsibility for dividing court business on the chief judge. As Raji notes, Crane then took pains to publicly emphasize that the conference’s action was “not a mandate” that might actually require any changes in his district. Another one, Alia Moses of Texas (another George W. Bush appointee), complained that the distance between federal courts in her district made such a change onerous for her travel schedule.
These are convenient dodges for these Texas judges, but they are unpersuasive. The shortage of federal judges in Texas in large part owes itself to Republican senators’ intransigence on allowing Democratic presidents to appoint them (there are currently seven federal judgeship vacancies in Texas). And while the Judicial Conference’s recommendations are not binding, they are an implicit recognition of the fact that the Texas federal judiciary is the primary locus for judge shopping. As the Strategic Plan for the Federal Judiciary states:
The federal judiciary is respected throughout America and the world for its excellence, for the independence of its judges, and for its delivery of equal justice under the law. Through this plan, the judiciary identifies a set of strategies that will enable it to continue as a model in providing fair and impartial justice.
So while the conference admittedly doesn’t have a ready enforcement mechanism for its “guidance” here, it shouldn’t have to. It specifically identified a serious problem with “providing fair and impartial justice” that mainly occurs thanks to districts within the state of Texas. Texas judges have responded by essentially indicating they intend not to follow the guidance of the conference, either because it isn’t binding, or it would cause them travel inconvenience. Ergo, nothing will change, and judge shopping will continue for their districts, exactly as has been planned from the outset.
It’s telling that nearly all of the objections cited by The Washington Post come from Republican-appointed judges and their backers. But as corrosive to the legal system as the practice of judge shopping is, thanks to the seeding of the federal judiciary with these transparent ideologues, the entire institution is now appearing more and more tainted.
The best evidence of that is what’s happened at the Supreme Court over the past two years. First, the court inexplicably leaks a draft of its most significant and far-reaching opinion (Dobbs v. Jackson) in a decade, then implausibly claims it just can’t discover who was responsible for the leak. In the months that follow, conservative members of the same court begin to pontificate about overturning established precedent with a nonchalance normally reserved for switching hairstyles, while evidence of the court’s own staggering corruption just keeps on piling up.
In the midst of all this, the right flank of the court (who apparently graduated from the Antonin Scalia school of judicial intemperance) gleefully fans out to give vitriolic, thin-skinned rejoinders to their critics. This is all while posing before adoring audiences of like-minded conservatives and dropping coy hints about how they intend to reshape American society in their twisted, theocratic image.
As the 2024 election looms, these same justices slow-walk a decision on presidential immunity for criminal acts by the GOP nominee (a decision a first-year law student could resolve) while sponsoring public relations tours designed to assure Americans that they are not simply following an agenda. They drop dark warnings about political stridency aimed at the critics of their edicts, while elevating their own favored classes to the role of aggrieved victims. Even Justice Sonia Sotomayor—who openly complained of this court’s right-wing “stench”—seems willing to take part in this public relations blitz, smiling along as fellow Justice Amy Coney Barrett festively recounts how the justices distribute Halloween candy, supposedly demonstrating a spirit of “civility.”
None of this is “normal” judicial behavior, and it’s not limited to the Supreme Court. All of it, however, is emanating from the right wing of the federal judiciary. The Fifth Circuit Court of Appeals, spoon-fed red meat by these first-tier Texas district judges, now routinely acts as a clearinghouse for the purpose of advancing whatever outlandish legal theories that may be put in front of it. Many of these novel ideas invariably involve harming discrete segments of the American population that the right either disapproves of or otherwise wishes to suppress; those who might become pregnant, those who might hope to be protected from gun-wielding domestic abusers, or even a government regulatory body that acts to protect the health of the American public come to mind. As Stephen Vladeck, writing for The Atlantic, explains, “What the Fifth Circuit is doing is participating in an extraordinary power grab, indifferent to the procedural rules that are supposed to constrain the powers of unelected judges.”
Due to this rampant ideological corruption—from the top on down—conservatives are gradually transforming the federal judiciary into an institution that many Americans sensibly fear, especially since it can take away established rights without being held accountable. It is a judiciary that does not foster the notions of fairness that Americans have every right to expect from it. It is a judiciary that is becoming increasingly illegitimate in the eyes of the public, because its application of the law is increasingly seen as selective, arbitrary, and politically infused. No ham-handed public relations campaign from the Supreme Court is going to change that, particularly in a system where constitutional law professors can no longer even look their students in the eye and assure them that the nation’s founding principles are being fairly interpreted and applied.
Americans should not have to live in dread of how some unelected judge in Amarillo or Fort Worth may decide to rule on an issue that could seriously alter their lives. They shouldn’t have to put up with the arrogance of an unaccountable judiciary that has been deliberately manipulated to fast-track the rabid dreams of domination by a tiny minority. When they cast their votes in November, Americans will have an opportunity to repair the damage and reverse this attempted usurpation of their own power by a compromised judicial branch. Because it’s clear that these judges have no intention of fixing the problem on their own.
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