Outside the Beltway

Ending Judge Shopping

A long-overdue reform is meeting resistance.

James Joyner · Sunday, March 17, 2024 · 8 comments

WaPo (“U.S. courts clarify policy limiting ‘judge shopping’“):

Federal judiciary leaders on Friday released the text of a revised policy directing district courts to assign judges at random in civil cases that have statewide or national implications, making clear that the policy is a recommendation and that they cannot force district courts to follow it.

The Committee on Court Administration and Case Management of the Judicial Conference of the United States, the policymaking body for the federal courts, released the guidance after receiving intense pushback about the change from judges, conservative lawmakers and judicial experts.

On Tuesday, conference officials announced that cases with statewide or national implications that are filed in single-judge divisions should no longer be automatically assigned to the judges who preside there. Such divisions exist in rural parts of the country where courthouses are spaced very far apart.

District courts may continue to assign cases to a single-judge division if those cases don’t seek to bar or mandate state or federal actions through declaratory judgment or injunctive relief, the Judicial Conference said. When random assignments are required, the case should be assigned to a judge within the same judicial district.

The policy does not apply to criminal or bankruptcy cases, according to the memo released Friday. “Case assignment in the bankruptcy context remains under study.”

The memo, shared with district court judges across the country, includes guidance explaining how the judges might follow the updated rule “while recognizing the statutory authority and discretion that district courts have with respect to case assignment.”

Judicial Conference officials said their intent is to address widespread concerns about “judge shopping” — or filing a lawsuit in a courthouse where the lone judge is known or suspected to be sympathetic to a particular cause. The tactic has drawn scrutiny in abortion, immigration and environmental cases, among other hot-button topics, as well as in patent cases, which have been concentrated in a single-judge courthouse in the Waco division of the Western District of Texas.

But the changes proposed to address the concerns have drawn a wave of new objections, with some saying the new policy violates federal statute 28 U.S.C. 137, which says that the chief judges of each district court are responsible for assigning cases.

[…]

Russell Wheeler, a judicial expert at the Brookings Institution, said the guidance “suggests, without saying so directly,” that conference officials are acting on their authority under federal statute 28 U.S.C. 331 to “submit suggestions and recommendations to the various courts to promote uniformity of management procedures and the expeditious conduct of court business.”

“Confusion resolved, and the Guidance on first reading seems eminently sensible,” Wheeler said in an email.

“This guidance was helpful,” Chief Judge Randy Crane of the Southern District of Texas wrote in an email. “It made it clear that the policy adopted by the Committee and the Conference was not a mandate. As such, it does not conflict with each court’s statutory authority to manage its docket. The guidance reflects that it is only an encouragement to the courts.”

As is so often the case, the problem is one that could best be addressed by Congressional action. Alas, that institution has been broken for quite some time, thus leaving the Executive to tinker around the edges.

Amusingly, at least some Members on both sides of the aisle recognize that there is a problem:

Democratic and Republican members of Congress, the Biden administration and organizations such as the American Bar Association have raised concerns about judge shopping in the past, and Chief Justice John G. Roberts Jr. also highlighted the issue in his 2021 Year-End Report on the Federal Judiciary.

In November 2021, Sen. Thom Tillis (R-N.C.) and then-Democratic senator Patrick Leahy of Vermont criticized the “extreme concentration” of patent cases in U.S. District Judge Alan Albright’s division in Waco. In a letter addressed to Roberts, who oversees the Judicial Conference, the senators asked the chief justice to direct the policymaking body to look into the matter and implement reforms.

“We believe this creates an appearance of impropriety which damages the federal judiciary’s reputation for the fair and equal administration of the law,” they wrote.

Sadly, I’m not sure that reputation is intact these days. But, yes, the ability to all but guarantee the desired outcome of a case by filing with a specific court is beyond outrageous. But the bigger outrage is the existence of so many judges that have essentially pre-judged certain classes of cases.

That said, from my lay standpoint, the guidance seems quite reasonable:

In issuing its guidance, the Court Administration and Case Management Committee noted that “public confidence in the case assignment process requires transparency” and suggested that judicial districts post their rules for case assignments on their websites and “avoid case assignment practices that result in the likelihood that a case will be assigned to a particular judge” unless there is a specific determination that the case should be heard in a particular location.

“The Judicial Conference’s longstanding policies supporting the random assignment of cases and ensuring that district judges remain generalists deter both judge-shopping and the assignment of cases based on the perceived merits or abilities of a particular judge,” the memo reads.

Sadly but not surprisingly, there are some in positions of power who prefer the status quo:

Much of the backlash against the new policy guidance has come from conservative judges and lawmakers, who accused the Judicial Conference and Democrats such as Senate Majority Leader Charles E. Schumer (N.Y.) of an attempt to grab power from conservative jurists in isolated jurisdictions.

Two days after the revised policy was announced, before the specifics were made public,Senate Minority Leader MitchMcConnell (R-Ky.) sent letters to about a dozen chief judges across the country advising them to ignore the change, saying it was up to them “to manage the caseload of your court according to the dictates of local circumstances and convention.”

The letter was also signed by Sen. John Cornyn (R-Tex.) and Tillis — who in 2021 questioned the concentration of patent cases in Waco.A spokesman for Tillis did not respond to a request for comment on the senator’s position Friday or early Saturday.

On Friday, after the text of the new guidance was released, a conservative judge on the U.S. Court of Appeals for the 5th Circuit said he was “glad to see that folks appear to be backing off.”

“Judges should follow the law, and leave the politics to Congress,” U.S. District Judge James Ho said in an email. “The last thing we should do is gerrymander the rules to favor one particular political viewpoint.”

But, of course, the existence of Trump judges (Ho, you will not be shocked to learn, is one of them) and one-judge districts means said gerrymandering is a fact.

Other concerns strike me as valid:

Other judges have expressed concerns about practicality.

Chief Judge Alia Moses of the Western District of Texas said it was hard to imagine how a random-case-assignment policy would work in her far-flung district, where the next courthouse can be a multiday drive away. The desire to avoid targeting a specific lawsuit to a particular judge “is understandable,” Moses said in an email, “but difficult to apply in the real world in a district that is 93,000 square miles in size.”

In announcing the policy on Tuesday, Chief Judge of the U.S. Court of Appeals for the 6th District Jeffrey Sutton, chair of the Judicial Conference’s executive committee, told reporters that one option for dealing with geographical distance issues could be holding some court proceedings online.

Wheeler, the judicial expert, questioned whether the conference will be able to persuade all district courts to follow the policy. He said judicial leaders could use the rulemaking process to amend the Federal Rules of Civil Procedure, which govern civil proceedings in the district courts.

But given the “hostile reaction, especially from those where the judge-shopping practice has flourished,” such a move would be a “tough slog,” he said.

“That leaves Congress. Dream on.”

Indeed.