The federal judiciary’s policymaking arm announced a new policy aimed at combating so-called “judge shopping,” which has allowed state attorneys general and advocates to effectively choose their judges in some cases.
The Judicial Conference announced the move at its biannual meeting, held in the nation’s capital on Tuesday, following increasing pressure to act from Senate Democrats, the Biden administration and others.
The new policy mandates that federal district courts randomly assign a judge to a lawsuit if the suit aims to block any federal or state law, executive order or regulation.
“Since 1995, the Judicial Conference has strongly supported the random assignment of cases and the notion that all district judges remain generalists,” Judge Robert Conrad, secretary of the Judicial Conference, 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,” his statement continued. “It promotes the impartiality of proceedings and bolsters public confidence in the federal Judiciary.”
Under some district courts’ procedures, lawsuits are automatically assigned to a judge who sits in that particular division.
With some divisions only comprising a singular judge, critics have complained that plaintiffs have been able to pick a judge they expect will deliver a favorable result with striking precision. Proponents of single-judge divisions note they are often used to accommodate rural areas.
In particular, some groups have taken aim at how Texas Attorney General Ken Paxton (R) and conservative legal groups have filed dozens of challenges to federal policies in specific divisions in Texas since President Biden took office.
The Justice Department has criticized the practice and attempted to transfer some of Paxton’s lawsuits. Last year, Senate Majority Leader Chuck Schumer (D-N.Y.) penned a letter threatening congressional intervention if the Northern District of Texas didn’t change its case assignment procedures.
A group of Senate Democrats and the Justice Department also both sent letters to arms of the Judicial Conference demanding changes.
“The Department respectfully suggests that the Advisory Committee act pursuant to this authority to adopt case assignment procedures that would address concerns about the appearance of judge-shopping in divisions with only one or two district judges,” Principal Deputy Assistant Attorney General Brian Boynton wrote in a December letter.
"Based on geography, some plaintiffs are able to guarantee their claims will be heard before a specific judge whereas others are left to chance, and this inconsistency undermines Americans' faith in our judicial system,” read the letter from 19 Senate Democrats sent last July.
Judge Jeffrey Sutton, who chairs the Judicial Conference’s executive committee, at a press briefing on Tuesday pushed back on the notion that the new policy is in response to Texas specifically or any other singular state.
“I can't think of too many judges that haven't been talking about national injunctions the last 10 years,” said Sutton. “So I guess I would have said this is not a recent phenomenon, but one that's at least 10 years in the making of the development of the whole docket.”
And the Judicial Conference’s announcement of the new policy also pointed to a 2021 bipartisan letter raising concerns about judge shopping that was signed by Republican Sen. Thom Tillis (R-N.C.) and Sen. Patrick Leahy (D-Vt.).
The implementation timeline for the new policy remains unclear. Sutton indicated a memo would be sent out by the end of the week with further guidance to the federal courts.
