On Friday, leaders of the federal judiciary shared a newly updated policy. This policy advises district courts to randomly assign judges to civil cases with wide-reaching effects, either statewide or nationally. However, it’s important to note that this policy serves as a recommendation. It doesn’t have the power to compel district courts to adhere to it.
The guidance came from the Committee on Court Administration and Case Management of the Judicial Conference of the United States. This body is responsible for making policies for federal courts. They decided to issue this guidance after receiving significant feedback. Criticism came from various quarters, including judges, conservative lawmakers, and experts in the judiciary.
On Tuesday, officials from the conference made an announcement. They said that in divisions with only one judge, cases with broad implications should not be automatically given to those judges. This situation often occurs in rural areas where courthouses are far apart.
District courts have the option to continue assigning cases to these single-judge divisions. This applies if the cases do not seek to prevent or require state or federal actions through judgments or injunctions. When random assignment is necessary, it should be to a judge within the same judicial district, as per the Judicial Conference.
The policy explicitly excludes criminal and bankruptcy cases. “Case assignment in the bankruptcy context is still under review,” the memo from Friday stated.
The memo was distributed to district court judges nationwide. It aims to explain how to implement the new rule. It acknowledges the autonomy and statutory authority district courts have regarding case assignments.
Officials from the Judicial Conference expressed their goal. They want to address concerns about “judge shopping.” This term refers to the practice of filing lawsuits in courts thought to be favorable to one’s cause. This practice has been scrutinized in various high-profile areas, including abortion, immigration, environmental issues, and patent litigation.
However, the proposed changes have sparked a new set of objections. Some argue that the new policy conflicts with federal law. Specifically, they cite 28 U.S.C. 137, which assigns the task of case assignment to the chief judges of each district court.
The committee clarified in the Friday memo. They are offering guidance to curb judge-shopping, not imposing a direct order. This approach respects the case assignment authority of chief judges.
The policies and guidance aim to support courts. They encourage aligning case assignment practices with the Judicial Conference’s policy of random case assignment. This approach does not limit a court’s authority or discretion, according to Jackie Koszczuk, a spokesperson for the Administrative Office of the U.S. Courts.
Russell Wheeler, a judicial expert at the Brookings Institution, interpreted the guidance. He noted it subtly suggests that conference officials are using their authority under federal statute 28 U.S.C. 331. This statute allows them to offer suggestions to courts to ensure uniform management procedures and swift court business.
Wheeler found the guidance sensible upon initial review. Chief Judge Randy Crane of the Southern District of Texas also found the guidance helpful. He appreciated that it clarified the policy as a recommendation, not a mandate. This clarification respects each court’s statutory authority to manage its docket.
Both Democratic and Republican members of Congress, the Biden administration, and organizations like the American Bar Association have previously expressed concerns about judge shopping. Chief Justice John G. Roberts Jr. also highlighted this 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 voiced concerns. They criticized the concentration of patent cases in Judge Alan Albright’s division in Waco. They wrote to Chief Justice Roberts, asking for reforms.
The Court Administration and Case Management Committee emphasized the need for transparency in the case assignment process. They suggested that judicial districts should publish their case assignment rules online. This move aims to avoid practices that might lead to a case being assigned to a specific judge unless there’s a justified reason for it to be heard in a particular location.
The Judicial Conference has long supported random case assignment. This policy helps ensure that district judges remain generalists. It aims to prevent judge-shopping and the assignment of cases based on the perceived merits or abilities of a specific judge.
However, the new policy guidance has faced criticism, particularly from conservative judges and lawmakers. They see it as an attempt by the Judicial Conference and Democrats to influence the judiciary in certain areas.
Senate Minority Leader Mitch McConnell (R-Ky.) responded quickly to the revised policy. He advised chief judges to manage their courts based on local needs and traditions. His letter was co-signed by Sen. John Cornyn (R-Tex.) and Tillis, despite Tillis’s previous concerns about patent case concentration in Waco.
After the guidance was released, a conservative judge from the U.S. Court of Appeals for the 5th Circuit welcomed the retreat from the proposed changes. U.S. District Judge James Ho emphasized that judges should adhere to the law and leave politics to Congress. He argued against adjusting the rules to favor any political viewpoint.
Some judges have raised practical concerns about the new policy. Chief Judge Alia Moses of the Western District of Texas questioned how feasible random case assignment would be in her large district. She acknowledged the intention behind the policy but noted the challenges of applying it in a district spanning 93,000 square miles.
Chief Judge Jeffrey Sutton of the U.S. Court of Appeals for the 6th District suggested online court proceedings as a potential solution to geographical challenges.
Wheeler speculated on the policy’s future enforcement. He mentioned that judicial leaders could amend the Federal Rules of Civil Procedure to enforce the policy. However, given the strong reactions, especially from those benefiting from judge-shopping, this approach might be difficult.
In conclusion, the path forward seems uncertain, leaving Congress as a potential, albeit unlikely, avenue for addressing these concerns.