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Judges and Judiciary

Apr. 2, 2024

Texas judges reject US Courts’ anti-judge-shopping guidelines

U.S. Sen. Mitch McConnell, R-KY, who had called it a “half-baked guidance that does Washington Democrats’ bidding,” declared victory.

Judge shopping remains alive and well, following a clarification by the Judicial Conference of the United States that its new policy to discourage litigants from cherry-picking judges by filing lawsuits in particular courthouses is advisory and a decision by the Northern District of Texas to reject that recommendation.

Chief U.S. District Judge David C. Godbey, in a Friday letter to Senate Majority Leader Chuck Schumer, D-NY, said the district wasn’t changing its policy, which allows litigants to pick their judges by filing lawsuits in single-judge jurisdictions.

“The district judges of the Northern District of Texas met on March 27, 2024, and discussed case assignment,” Godbey wrote. “The consensus was not to make any change to our case assignment process at this time.”

Schumer had asked Godbey to “implement the new Judicial Conference policy regarding judge shopping as soon as possible.”

But Godbey, an appointee of President George W. Bush, cited a federal statute, which states: “The chief judge of the district court shall be responsible for the observance of such rules and orders, and shall divide the business and assign the cases so far as such rules and orders do not otherwise prescribe.”

On the same day as Godbey wrote his letter, U.S. District Judge Matthew J. Kacsmaryk of Amarillo, an appointee of President Donald Trump, granted a nationwide preliminary injunction sought by several banking industry groups blocking new regulations by federal banking agencies until the lawsuit is resolved. Texas Bankers Association et al. v. Office of the Comptroller et al., 24-00025 (N.D. Tx., filed Feb. 24, 2024).

Kacsmaryk has been one of the go-to judges for Texas Attorney General Ken Paxton and business groups seeking to challenge Biden administration policies and the U.S. Food and Drug Administration’s decades-old approval of mifepristone, a medication abortion drug.

Legal observers said the district court’s decision to ignore the Judicial Conference’s guidance was a pointed rebuke to its recommendation, and a victory for U.S. Sen. Mitch McConnell, R-KY, who said in a speech on the Senate floor that the policy was “half-baked guidance that does Washington Democrats’ bidding.”

McConnell and 11 other Republican senators declared victory in a letter to Senior U.S. District Judge Robert J. Conrad of the Western District of North Carolina, who was appointed by Chief Justice John G. Roberts Jr. in March as director of the Administrative Office of the United States Courts.

“We are pleased that the judiciary has chosen not to interfere in the legislative process,” the senators wrote. “It is expected that this is the last we hear about this issue from the Judicial Conference.”

Paul R. Gugliuzza, a professor at Temple University Beasley School of Law, said in an email that the status quo will remain, just weeks after Conrad, who like Roberts is a Bush appointee, touted the guidance.

Even though the proposal was promoted by judges appointed by Republican presidents, it was blasted by McConnell and other conservative lawmakers who complained that district court case assignments are governed by federal statute, and that such a change would favor liberal groups – who could file in districts dominated by Democratic appointees even if they could not pick a judge due to their random selection process.

“So, in the end, the new ‘policy’ requiring randomization that everyone was excited about seems to be entirely toothless,” Gugliuzza wrote.

“The judges in the Northern District [of Texas] say they’re simply exercising their discretion to assign all cases filed in single-judge divisions to the single judge who actually sits in that division – just as is done in many single-judge districts throughout the country,” he continued.

“But it’s hard to ignore that 10 of the 11 active judges on the Northern District were appointed by Republican presidents, and it’s Republican politicians and Republican-appointed 5th U.S. Circuit Court of Appeals judges who were complaining most loudly about the Judicial Conference policy,” Gugliuzza added.

Former U.S. District Judge Jeremy Fogel, executive director of the Berkeley Judicial Institute at UC Berkeley School of Law, said district courts are almost always “sensitive” to Roberts’ concerns and follow Judicial Conference guidance, noting that the Western District of Texas changed its policy in 2022 so that all patent infringement lawsuits would be assigned districtwide instead of to U.S. District Judge Alan D. Albright, a Trump appointee.

“The decision by the Northern District of Texas not to adhere to Conference policy is unusual, but it’s not particularly unexpected given the political controversy that followed the policy’s issuance,” Fogel wrote in an email.


Craig Anderson

Daily Journal Staff Writer

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