WASHINGTON – U.S. Senate Democratic Whip Dick Durbin (D-IL), Ranking Member of the Senate Judiciary Committee, today questioned witnesses during a Senate Judiciary Joint Subcommittee hearing entitled “The Supposedly ‘Least Dangerous Branch’: District Judges v. Trump.” Durbin first asked the witnesses about nationwide injunctions. Last month, the Supreme Court heard oral arguments in Trump v. CASA. In that case, the justices are considering whether they should stay the district courts’ nationwide preliminary injunctions against the Trump Administration’s executive order that attempted to end birthright citizenship. During his question, Durbin echoed a hypothetical posted by Justice Sotomayor during the case’s oral arguments.
“She [Justice Sotomayor] said, and I’m paraphrasing: imagine a new president takes office and decides, because of the epidemic of gun violence in our country, to issue an executive order announcing that he will deploy the military to seize the guns of every gun owner across the country. That executive order would be swiftly challenged in a federal district court—or, more likely, in several district courts. Should a district court be allowed to issue a nationwide injunction to at least temporarily prevent the enforcement of that executive order?” Durbin asked.
Josh Blackman, a professor at the South Texas College of Law, responded that he did not think the remedy would be in the courts. Kate Shaw, a professor at the University of Pennsylvania Carey Law School, responded, “whatever the Constitutional right is… if a president tries to do something that is in clear violation of settled law… an injunction is an appropriate remedy.” Joel Alicea, a professor at the Catholic University of America Columbus School of Law, responded, “I don’t think a judge could issue a universal injunction under those circumstances.”
“Do you think it is reasonable to expect every single person affected by an executive order, like the one I described, to seek relief through Rule 23 or to file their own lawsuit to seek relief?” Durbin asked.
Professor Alicea responded, “I don’t think that would be necessary. If you had one person who sought class certification successfully, that would be sufficient.”
Durbin then asked the witnesses about judge shopping. During the Biden Administration, right-wing litigants flocked to the Amarillo Division of the Northern District of Texas to file their lawsuits. Those litigants filed their lawsuits in Amarillo because only one judge sits in that division—Judge Matthew Kacsmaryk. Litigants knew Judge Kacsmaryk would be assigned to their cases and viewed him as favorable to their arguments.
“Judge Kacsmaryk is pretty well known for the way he rules. Professor Shaw, do you have any observation on that?” Durbin asked.
Professor Shaw responded that “those single-judge divisions—like the one in Amarillo, Texas where Judge Kacsmaryk sits—are a genuine problem, but none of the injunctions against the Trump Administration have issued from judges who sit in those single-member districts… we aren’t seeing it now but I do think, regardless of who the president is, these single-judge divisions are a problem that Congress would be well-served to address.”
Video of Durbin’s first round of questions in Committee is available here.
Audio of Durbin’s first round of questions in Committee is available here.
Footage of Durbin’s first round of questions in Committee is available here for TV Stations.
-30-