Leader McConnell In National Review: Judicial Bureaucrats Must End Crusade Against ‘Single-Judge Divisions’
WASHINGTON, D.C. – U.S. Senate Republican Leader Mitch McConnell (R-KY) penned the following op-ed for National Review:
Should the federal courts discriminate against rural litigants? Many prominent federal judges say “yes.”
For almost a year, the bureaucracy of the federal courts has been on a crusade against so-called single-judge divisions: federal district courts where one judge hears the cases. These divisions are mostly in rural areas, including my home state of Kentucky. The logistical challenges rural litigants frequently face seeking justice in far-flung locations make these courthouses invaluable.
The judicial bureaucracy doesn’t see it that way. It has been embarrassed by the ability of conservative, rural litigants to bring their cases in front of specific judges — often in Texas. Of course, this same bureaucracy turns a blind eye to the uniformly liberal district courts where progressive litigants are guaranteed a sympathetic outcome regardless of the judge they draw.
So this spring, the judicial bureaucracy proposed to randomly assign certain cases across entire districts. This would mean a litigant who files in a single-judge division in Amarillo could be required to travel to Dallas (more than 300 miles away) for their case. This proposal was presented as a binding rule by the Judicial Conference of the United States to much fanfare from the press and the Left.
There was one problem: It was illegal. Case assignment is actually governed by a federal statute, which empowers district courts to establish their own case-assignment protocols.
When I raised this issue, the judicial bureaucracy quickly backpedaled and made the proposal a mere suggestion. Since then, some courts have adopted the recommendation and others haven’t.
But this week, the judiciary’s Rules Committee is going to take up the issue again. In its agenda, the committee says it intends to ensure compliance on random assignment. If the holdout courts don’t comply, then the judicial bureaucracy will simply rewrite the case-assignment statute via the Federal Rules of Civil Procedure.
The thuggery is staggering. Nice district court you have there. Shame if something were to happen to it.
Under pressure from the Biden-Harris Justice Department and various liberal activists, the judicial bureaucracy seems convinced that it can fit a square case-management peg in a round civil-rules hole to evade an on-point statute.
But this is a category error. The random assignment of cases is not a question of civil procedure but rather one of court administration. At the heart of court administration in the lower courts is the power of Congress under the Constitution “to constitute Tribunals inferior to the Supreme Court.” Congress has already spoken on the question of how district courts administer the division of their cases, which leaves to those district courts the business of setting case assignment “by the rules and orders of the court.”
Simple statutory interpretation shows why the judicial bureaucrats have it wrong. The case-assignment statute has its roots in the Judicial Code of 1911. Two decades later, in 1934, Congress enacted the Rules Enabling Act, which governs the civil rules. Against that backdrop, Congress then enacted the case-assignment statute in 1948, directing that cases “shall be divided” among the judges in a district as the court sees fit.
Knowing full well that the Rules Enabling Act was out there, Congress gave a directive — not a suggestion — to the district courts, over which it has constitutive authority, as to how they must administer their dockets.
The Justice Department is skeptical. It says if this were the case, surely Congress “would have left some evidence in the statute’s text or legislative history.” Legislative history — the last refuge of a textual scoundrel.
The statute’s text is the evidence: Congress mandated how the courts must manage their dockets. We should all take that at face value and not look for some broad, amorphous grant of legislative power to the judicial bureaucracy.
Indeed, the Supreme Court has warned against assuming that Congress has delegated broad legislative authority to other branches of government. Usually that’s in the context of the executive branch, but it ought to apply to the judiciary, too. We can’t assume that Congress gave the judicial bureaucracy a roving commission to rewrite the case-assignment statute through the Rules Enabling Act.
Judge Harold Leventhal of the D.C. Circuit once said that using legislative history was “looking over a crowd and picking out your friends.” If the judicial bureaucracy relies on shoddy legislative history to justify a sweeping power grab on one-judge divisions, it will be doing just that — and those friends will be the Biden-Harris Justice Department, Senate Democrats, and left-wing law professors. Perhaps the judicial bureaucracy should look to those friends the next time they ask for a judicial pay raise.
We have a saying in Kentucky: There’s no lesson from the second kick of a mule. The judicial bureaucrats should come to their senses and stop interfering with how Congress wants cases assigned in district courts.
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