After McConnell Encourages District Courts To Ignore Guidance, Majority Leader Schumer And Senate Democrats Call On Judicial Conference To Encourage Courts To Adopt New Policy Limiting The Dangerous Practice Of Judge Shopping

Washington, D.C. – Today, Senate Majority Leader Chuck Schumer (D-NY) and 8 Senate Democrats sent the following letter to the Honorable Bob Conrad, Secretary of the Judicial Conference, urging the conference to defend its new policy regarding judge shopping and encourage courts to adopt the policy. Leader Schumer has been sounding the alarm on this dangerous practice and recently, the Judicial Conference heeded his call and released a new policy. Last July, Leader Schumer led 18 senators in sending a letter to the Judicial Conference’s Advisory Committee on Civil Rights.

Today, Senate Majority Leader Chuck Schumer (D-NY), along with 8 other Senators, called on the Judicial Conference to fully defend its new policy, released March 12^th, to limit the ability of plaintiffs to judge shop. This harmful practice allows right-wing activists to essentially hand pick district judges they see as sympathetic to their cause. The Judicial Conference’s actions follow nearly a year of Leader Schumer sounding the alarm and calling for the courts to act. Following the decision, Republican Leader Mitch McConnell (R-KY) said he “hope[d] district courts throughout the country will instead weigh what is best for their jurisdictions, not half-baked ‘guidance’ that just does Washington Democrats’ bidding.”

The letter was signed by Senators Mazie K. Hirono (D-HI), Richard Blumenthal (D-CT), Raphael Warnock (D-GA), Elizabeth Warren (D-MA), Peter Welch (D-VT), Martin Heinrich (D-NM), Edward J. Markey (D-MA), and Cory A. Booker (D-NJ).

Just this week, the Supreme Court heard oral arguments for FDA v. Alliance for Hippocratic Medicine, a case brought by an anti-abortion group. The Alliance for Hippocratic Medicine incorporated in Amarillo, Texas, in August 2022, shortly before filing its December 2022 lawsuit to strike down the FDA’s approval of mifepristone, guaranteeing that the matter would land before Matthew Kacsmaryk – a known right-wing judge sympathetic to their cause. The Judicial Conference’s new policy would have ensured that the action was assigned randomly amongst the current 11 district judges in the Northern District of Texas instead of automatically going before Kacsmaryk, the only judge serving in the Amarillo Division of that district.

“The anti-democratic practice of judge shopping erodes the rule of law and the public’s trust in the judiciary. Your new policy rebalances our court system and will help to restore Americans’ confidence in judicial rulings,” wrote the Senators. “We encourage you to defend it as courts across the country implement it.”

The full text of the letter can be found here and below.

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Dear Secretary Conrad:

We write to you today to applaud the Judicial Conference’s new policy on judge shopping, which requires judges to be assigned through a district-wide random selection process in civil actions that seek to bar or mandate state or federal laws on a statewide or nationwide basis.[1] This follows a letter from members of our caucus on this subject dated July 10, 2023.^[2]

Congress requires the Judicial Conference to create policies for our courts that “promote uniformity of management procedures,”[3] and this issue is a quintessential example. In nearly every judicial district, local rules require cases to be assigned among all of the judges serving in the district according to a random selection process. However, in a few districts with single-judge divisions, plaintiffs can effectively choose the judge who will hear their case due to local court rules governing how matters are assigned. As a result, 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.

This judge-shopping tactic is more pernicious than it might appear. Even though there are only a few courts subject to this issue, single district judges can issue rulings that thwart congressional statutes and stymie agency actions on a nationwide basis. That means certain plaintiffs are motivated to file their cases in divisions where they know the judge hearing the case is aligned with their goals. For example, the FDA’s approval of mifepristone impacts patients nationwide. A challenge to its approval could have been brought in any district court in the nation,[4] but it is no coincidence that the Alliance Defending Freedom filed suit in the Northern District’s Amarillo Division. The plaintiffs knew they had an ally in Judge Matthew Kacsmaryk, and they knew that this one judge in Texas was inclined to bring down an agency action affecting the entire nation. 

The anti-democratic practice of judge shopping undermines the rule of law and the public’s trust in the judiciary. Your new policy rebalances our court system and will help to restore Americans’ confidence in judicial rulings. We encourage you to defend it as courts across the country implement it.

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