Federal courts have their own administrative state, and that’s a problem.

Like many of its executive branch counterparts, the Administrative Office of U.S. Courts came into existence during President Franklin D. Roosevelt’s New Deal push to establish supposedly expert administrators.

Established in 1939 after FDR’s failed court-packing plan, the “AO” (as it has come to be known) nominally has a narrow mandate—“to provide administrative support to federal courts.”

In fact, two federal appellate courts that have examined the relationship of the AO vis-a-vis the federal judiciary have said that the AO “was created to perform, and historically has performed, a limited ministerial function.”  It was not, they said, “intended to govern or make policy for the Judiciary.” 

It would raise serious constitutional concerns for it to do so, since the AO itself is a not an entity under Article III of the Constitution.

That job instead has been assigned to the Judicial Conference of the United States, which serves as the “Judiciary’s principal policy-making body.”

The chief justice presides over the Judicial Conference, which is “comprised of the chief judge of each judicial circuit, the Chief Judge of the Court of International Trade, and a district judge from each regional judicial circuit, who is elected for a term of not less than three nor more than five successive years as established by majority vote of all circuit and district judges of the circuit represented.”

Still, the chief justice appoints the AO’s director, who is under “the supervision and direction of” the Judicial Conference.

Today, the AO maintains a sprawling portfolio and has engaged in actions that have directly injected the courts into hot-button political controversies. Worse still, the AO’s actions seem to contradict the Supreme Court’s own recent precedent in the area of racial preferences.

For instance, an article published earlier this year highlighted just a few of the AO’s problematic diversity, equity, and inclusion programs, where the AO has been touting its work to promote “diversity” in the profession, particularly along “racial, ethnic, socioeconomic, and sexual-orientation dimensions.”

While the Judicial Conference should rein in these problematic policy decisions, it has unfortunately allowed some of these same pernicious themes to creep into its views, too.

As part of its 2020 Strategic Plan for the Federal Judiciary, it emphasizes that “Judges must be encouraged to give special attention to diversity in their law clerk hiring process.” Of course, that diversity lies largely along racial, ethnic, and sexual orientation dimensions.

And the reports of the Judicial Conference’s various committees are rife with references to programs under consideration to increase the diversity of staff and employees and among members of the bankruptcy and magistrate benches.

At its next meeting, the Judicial Conference should engage in a serious discussion about whether these various initiatives and programs undermine confidence in the judiciary.

They give the impression that the courts themselves are not being colorblind in their actions and are instead relying on something other than merit when making hiring and firing decisions.

And the Judicial Conference (again, headed by the chief justice) must grapple with whether these programs can still pass muster in light of the Supreme Court’s decision this past June (written by the chief justice) striking down Harvard’s and the University of North Carolina’s affirmative action programs.

There’s some precedent at the state level for reviewing such programs being implemented in our court systems around the country.

The Florida Supreme Court, for example, exercised its administrative oversight to prohibit programming that required certain diversity quotas from qualifying for continuing legal education credit. Other state high courts should similarly exercise their oversight authority, and the Judicial Conference must do the same here.

Our Constitution is colorblind, and our courts must be colorblind, too, in all of their actions. To do otherwise undermines the very foundations of our court system—and our country.

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