In a recent meeting, a federal appeals court judge voiced significant concerns regarding potential efforts by the judiciary to implement a binding rule aimed at curbing the practice of judge-shopping. This practice, often utilized by litigants seeking favorable outcomes, raises important questions about the balance of power between the judicial and legislative branches.
The Judicial Conference’s advisory committee on civil rules convened on Thursday to assess how effectively trial courts have integrated recent nonbinding guidance. This guidance, issued in March, encourages judges to assign cases randomly within their district, especially those challenging state or national policies. The intent is to prevent litigants from strategically filing cases in divisions where they might influence the selection of their judge.
Judge Marvin Quattlebaum, Jr. of the U.S. Court of Appeals for the Fourth Circuit, a member of the advisory committee, described the issue as “volatile.” He urged the committee to proceed with caution, emphasizing that a move toward a binding rule could risk infringing upon the separation of powers. “It’s a legitimate question whether only Congress can enact such changes,” Quattlebaum remarked, echoing the sentiments of Senate Republicans who argue that this decision lies outside the judiciary’s purview.
The current climate of judicial scrutiny primarily stems from conservative litigants utilizing judge-shopping strategies to challenge Biden administration policies, including the student loan forgiveness plan and border initiatives. However, Quattlebaum noted that this tactic is not new and spans across different administrations. “While I understand the concern for judicial integrity, there’s a risk that efforts to address this issue may inadvertently appear partisan,” he cautioned.
U.S. District Judge Robin Rosenberg, chair of the civil rules panel, stated that the committee is carefully monitoring how trial courts are responding to the guidance. “Our process is in the early stages, and we are committed to pausing and reflecting before making any decisions,” she emphasized.
The Northern District of Texas has garnered particular attention for its one- or two-judge divisions, which some believe allow litigants to effectively choose their judges. Chief Judge David Godbey, a member of the rules committee, has opted not to change the court’s assignment procedures despite the recent guidance.
At a prior meeting, judiciary officials confirmed that the committee is still evaluating its authority to mandate changes in assignment practices. Reports indicate that some district courts, particularly in Virginia, Kentucky, Indiana, Florida, and Pennsylvania, have adopted the guidance, while many with single-judge divisions have not yet adjusted their assignment methods.
Senate Republicans, including Minority Leader Mitch McConnell, have voiced opposition to establishing a binding case assignment policy. In a recent op-ed for the National Review, McConnell urged “judicial bureaucrats” to refrain from interfering with congressional preferences regarding case assignments in district courts.
As discussions continue, the judiciary remains committed to maintaining its integrity while navigating the complexities of judge-shopping and its implications for the rule of law.
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