US judiciary says courts have discretion to adopt ‘judge shopping’ policy

By Thomson Reuters Mar 15, 2024 | 6:37 PM

By Nate Raymond

(Reuters) – The U.S. federal judiciary on Friday made clear that trial courts had discretion to decide how to implement a policy it adopted earlier in the week to curtail the practice of “judge shopping” cases that challenge government policies.

Judicial policymakers issued the guidance following a backlash from some conservative judges and Republican lawmakers including Senate Minority Leader Mitch McConnell, who called it a “half-baked” policy that would advantage Democrats in legal battles.

The policy announced on Tuesday by the U.S. Judicial Conference followed complaints by Democratic lawmakers, including Senate Majority Leader Chuck Schumer, about conservative litigants filing lawsuits challenging President Joe Biden’s agenda in one-or-two judge courthouses, or divisions, in Texas with Republican-appointed judges, allowing them to effectively pick their judge.

The new policy aimed to curtail such “judge shopping” by assigning cases challenging federal or state laws to a judge randomly throughout a federal district.

McConnell and other Republican senators in letters sent on Thursday to chief district court judges argued that a federal statute gave the local courts sole discretion to decide how cases are assigned, allowing them to not follow the policy.

In a memo on Friday to district court judges nationwide, the chair of the Judicial Conference committee that developed the policy, U.S. District Judge Gregory Van Tatenhove of the Eastern District of Kentucky, acknowledged that statute and said the Judicial Conference’s policies “should not be viewed as impairing a court’s authority or discretion.”

“Instead, they set out various ways for courts to align their case assignment practices with the longstanding Judicial Conference policy of random case assignment,” he wrote.

Tatenhove, an appointee of Republican former President George W. Bush who was recommended to the bench by McConnell, said practices that do not reflect random case assignment “tend to undermine the independence of the branch and the trust of the public in the judiciary.”

Representatives for McConnell and Schumer did not immediately respond to requests for comment.

Republican state attorneys general and activists had seized on local rules in Texas to sue in small courthouses in the state whose one or two judges were appointed by Republican presidents, enabling them to essentially choose judges who have reliably ruled in their favor on issues like abortion, immigration and gun control.

In one of those cases, U.S. District Judge Matthew Kacsmaryk – an appointee of Republican former President Donald Trump – in the single-judge division of Amarillo, Texas, in April suspended approval of the abortion pill mifepristone.

The U.S. Supreme Court has allowed the pill to remain on the market while it considers an appeal in the case, set for argument on March 26.

The Texas cases prompted calls from Democratic lawmakers, the Biden administration, the American Bar Association and others for the judiciary to ensure cases challenging national policies are heard by a random judge.

The chief judge of Texas’ Southern District, Randy Crane, in a statement said Friday’s guidance made clear that the policy was not a mandate and “does not violate our statutory authority to manage our dockets.”

“It was unclear from the adoption of the policy whether that was the case,” said Crane, another appointee of Bush. “This guidance makes it clear that courts are merely encouraged to consider the new policy in managing their cases.”

(Reporting by Nate Raymond in Boston, Editing by Alexia Garamfalvi and Rosalba O’Brien)