Last week, the Judicial Conference of the United States announced a new policy to “promote random case assignment.” The policy, it claims, would limit litigants’ ability to choose judges in certain cases based on where they file a lawsuit. In reality, the purported policy did the Left’s bidding by targeting only one kind of forum shopping, with its apparent ambitions reduced to a laughingstock.
The Judicial Conference instructed district courts to “apply district-wide assignment to” civil cases that seek to bar or enforce state or federal laws, including rules, regulations, or policies, by declaratory or injunctive relief. But Congress has already established by statute, 28 U.S.C. § 137(a), that “[t]he business of a court having more than one judge shall be divided among the judges as provided by the rules and orders of the court.” How cases are assigned, in other words, is a matter left to individual district courts. (Another provision of the statute allows “the judicial council of the circuit” to step in where “the district judges in any district are unable to agree upon the adoption of rules or orders,” but the Judicial Conference of the United States has been given no such power in any scenario.)
While the policy purports to apply across the nation, it will affect in its practical application only “a handful of single-judge divisions in Texas and Louisiana, and possibly a few other states,” as Josh Blackman has pointed out, and not in states including California and New York that have more ideologically homogenous districts where random assignment would not defeat the aims of liberal litigants. This is no accident. The policy came about at the urging of Majority Leader Chuck Schumer, who wrote in a letter to the Judicial Conference in July that “based on geography, some plaintiffs are able to guarantee that 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.”
Minority Leader Mitch McConnell called out this thinly veiled partisan chicanery. “Now that nationwide injunctions are being used against the Biden Administration,” he said on the Senate floor, “liberal allies in the academy and in the media have started to target single judge divisions where they think conservative plaintiffs are likely to get favorable ratings from sympathetic judges.” The Conference’s policy “will have no practical effect in the venues favored by liberal activists. But Democrats are still salivating at the possibility of shutting down access to justice in the venues favored by conservatives.” Senators John Cornyn and Thom Tillis joined McConnell in a letter to chief judges across the country that noted the Conference’s lack of statutory authority for its actions and urged them to do “your job to manage the caseload of your court . . . . without regard to partisan battles in Washington, D.C.”
The policy faced pushback from the outset, with Randy Crane, the chief judge of the Southern District of Texas, saying that it “seems to be a response to decisions adverse to certain political interests, given its timing.”
Relevant members of the Judicial Conference have since clarified that their stated policy was in fact a mere recommendation, and a letter sent yesterday that was signed by 19 Republican senators expressed “our expectation that this is the last we hear about this issue from the Judicial Conference.” Schumer for his part sent his own letters yesterday to the Judicial Conference and the chief judge of the Northern District of Texas, but these amounted to a defensive measure—aiming to persuade, but devoid of any teeth.
The Democrats are unlikely to persuade judges or congressional Republicans that their concern is not situational as counterexamples of forum-shopping by the Left become better known. A recently unsealed panel report from 2023, for instance, highlights a strategy employed by counsel for liberal organizations that challenged an Alabama law that among other things barred certain procedures for transgender minors. They engaged in “judge shopping” where single-judge divisions were not at issue. In an intricate series of litigation maneuvers, attorneys filed several complaints in the Northern District and Middle District of Alabama, employing efforts to get cases reassigned or voluntarily dismissed and refiling with a different set of plaintiffs. As the report ultimately concludes, this amounted to “misconduct” by eleven attorneys named in the report. By their tactics in court, “counsel intentionally attempted to direct their cases to a judge they considered favorable and, in particular, to avoid Judge [Liles] Burke,” a Trump appointee. As Josh Blackman observed, the attorneys in these cases “got caught” after making “some ill-advised statements to the press . . . . But in many other cases, they are not caught. I will wait to see breathless outrage on social media about this actual judge shopping. If ADF did something like this, they would be crucified.”
But the double standard that typically governs media treatment of conservative versus liberal organizations makes it easier for senators like Schumer to make one-sided appeals for “reform” with a straight face. This time, it all looks foolish. The Judicial Conference did itself no favors going along with the majority leader, and its members now probably wish this episode could be forgotten.