If federal judges don’t follow policy to curb judge shopping, Congress should make them
Over the last several years there has been a power shift in Washington — and it has come by way of the Lone Star State. Texas-based federal district judges have issued a string of rulings that have had immediate and nationwide implications on federal policies — essentially inserting themselves in the roles reserved for those in the White House, federal agencies, and Congress.
Since 2021, those rulings have included two nationwide injunctions blocking the Biden administration’s immigration policies to curb immigrationrelated arrests and end a rule that forced asylum seekers to remain in Mexico, halting a consumer protection rule that required banks to disclose data to ensure equity in small-business lending, and stripping the Food and Drug Administration’s approval of the abortion drug mifepristone. Other suits filed before conservative federal judges in Texas and other states have sought to halt state and federal policies governing matters including gun control and LGBTQ rights.
Those cases didn’t arise by accident. Instead, conservative groups and other activists specifically and strategically filed in that state in an effort to get their challenges before friendly judges more likely to rule broadly in an effort to thwart federal policy — a practice known as judge shopping.
The US Judicial Conference, the body that creates and enforces rules governing the federal judiciary, has taken an important step to address this problem as it applies to statewide and nationwide injunctions as well as patent and bankruptcy matters. Earlier this month the conference announced a new policy that would assign such legal challenges randomly throughout a federal district rather than allowing them to be steered toward specific judges.
“Since 1995, the Judicial Conference has strongly supported the random assignment of cases and the notion that all district judges remain generalists,” Judge Robert J. Conrad Jr., secretary of the conference and a US District Court judge for the Western District of North Carolina, said in a statement.
“The random case-assignment policy deters judge shopping and the assignment of cases based on the perceived merits or abilities of a particular judge,” Conrad said in his statement. “It promotes the impartiality of proceedings and bolsters public confidence in the federal Judiciary.”
The new guidelines are nonbinding, but federal judges would be wise to implement them. At a time when trust in federal courts, and by extension the rule of law, is eroding, it is a common-sense step to take to guard against the misuse of the judicial system.
In his 2021 annual year-end report on the judiciary, Chief Justice John Roberts noted the high concentration of patent cases filed in single-judge divisions, an issue flagged in a letter from Republican Senator Thom Tillis of North Carolina and now-retired Democratic senator Patrick Leahy of Vermont.
Roberts called on the Judicial Conference to address
Conservative groups and other activists specifically and strategically filed in Texas in an effort to get their challenges before friendly judges more likely to rule broadly in an effort to thwart federal policy — a practice known as judge shopping.
the judge shopping issue, writing that “selfgoverning bodies of judges from the front lines are in the best position to study and solve” it and also “to work in partnership with Congress in the event change in the law is necessary.”
Yet, there was swift blowback to the conference’s guidelines. Senate minority leader Mitch McConnell of Kentucky went so far as to urge federal judges to ignore the guidelines and “instead weigh what is best for their jurisdictions, not half-baked ‘guidance’ that just does Washington Democrats’ bidding.”
Some federal judges, including James Ho of the Appeals Court for the Fifth Circuit, the court that takes up appeals of district court rulings in Texas, also criticized the new rule.
“Judges are supposed to follow the laws enacted by Congress, not bend the rules in response to political pressure,” Ho, a Trump appointee, said in a statement.
That Republican lawmakers so vocally opposed the guidelines is unsurprising, as it amounts to a tacit admission that they support the abuse of the legal system for partisan ends. But that some members of the judiciary also pushed back against what they call political pressure on the judiciary is more troubling. And it is a sign that the solution hinted at by Roberts, who serves as the presiding officer for the conference, may be necessary: a change in law that makes the random assignment of challenges seeking to halt state or federal laws mandatory rather than advisory.
Such a rule would come with some drawbacks: Both judges and litigants could be required to travel longer distances to adjudicate the cases, taking up valuable time and incurring other additional costs. But given how impactful challenges seeking to halt statewide or nationwide policies are, the hardship of that disadvantage must give way to the interest in the fair administration of justice.