After Nearly A Year Of Sounding The Alarm And Following The Judicial Conference Heeding His Call, Majority Leader Schumer Sends New Letter Calling For Immediate Adoption Of New Policy To Limit Dangerous Practice Of Judge Shopping

Washington, D.C. – Today, Senate Majority Leader Chuck Schumer (D-NY) sent the following letter to the Chief Judge of the United States District Court for the Northern District of Texas, David Godbey, urging Chief Judge Godbey to implement the Judicial Conference’s new policy regarding judge shopping as soon as possible. Last April, Leader Schumer sent a letter to Chief Judge Godbey calling for the end to this dangerous practice and in July he 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) is calling on Chief Judge Godbey of the United States District Court for the Northern District of Texas to implement the Judicial Conference’s new policy regarding judge shopping as soon as possible. Leader Schumer called on Chief Judge Godbey to end this harmful practice in a letter last April. This district’s unfair method of assigning cases to judges effectively allows litigants to choose which judge hears their case. Right-wing activists have taken advantage of this practice, essentially hand-packing district judges who they see as sympathetic to their cause.

“The practice of judge shopping is a blight on the American judicial system,” said Leader Schumer. “At a time when many Americans have lost faith in the court system, we must work to make a more just and more fair system that will upload the integrity of federal cases and subsequent decisions. The Judicial Conference took a stand and recognized the harms of allowing plaintiffs to hand-pick their desired judges. This action would bring back justice to our justice system by limiting the ability of MAGA-right plaintiffs to hijack our federal court systems. There is too much at stake – abortion access, LGBTQ+ protections, legal immigration, climate legislation, just to name a few issues. But this new rule would rebalance our court system and restore America’s trust in judicial rulings.”

In a response to Leader Schumer’s letter last May, Chief Judge Godbey noted he was “cognizant of the public perception of  improper judge-shopping in single-judge divisions,” but cited “unusual characteristics” such as the size and the diversity of urban and rural counties. He also noted that the random assignment of all civil cases “would present logistical challenges.” However, the Judicial Conference’s new policy should be easier to manage since it only applies to a subset of civil cases: actions seeking to bar or mandate statewide or nationwide enforcement of a state or federal law.

Leader Schumer poses, in his new letter, five questions to Chief Judge Godbey “to better understand how [his] court might respond to this new rule and to better assess the concerns and factors you described in [his] response letter.”

In calendar year 2023, how many civil actions seeking to bar or mandate statewide or nationwide enforcement of a state or federal law were filed in the District Court of the Northern District of Texas? What percentage of total civil actions filed in the district did this number represent? What percentage of total actions filed in the district altogether did this number represent?

       Please also provide the same figures for each division of the District Court of the Northern District of Texas.

Local Civil Rule 83.3 for the Northern District of Texas states that “district judges shall determine the method by which all cases are assigned to individual judges.” Please describe that determination process, including (i) whether these determinations are made by unanimous agreement, majority vote, or other method; and (ii) whether any related rule is given “appropriate public notice and an opportunity for comment” before taking effect, as required by 28 U.S.C. 2071(b).

How does your court implement or address public comments?

When will the District Court of the Northern District of Texas adopt the Judicial Conference’s new policy on judge shopping? Is there an annual or quarterly meeting to address possible changes to your local rules? Could such a meeting be called at any time?

Could your court implement the Judicial Conference’s new rule without requiring judges to travel?

The practice of judge shopping made national headlines last year when U.S. District Judge Matthew Kacsmaryk issued a ruling suspending the FDA’s approval of mifepristone, an abortion drug that has been available for decades. Judge Kacsmaryk is the only judge in the Amarillo Division and any case filed there will be assigned to him – solely due to local rules that the Northern District of Texas could change. In his past rulings, Kacsmaryk has shown himself to be sympathetic to the anti-abortion movement, and it is clear that the plaintiffs sought him out specifically for this purpose.

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

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Dear Chief Judge Godbey:

I write to you today encouraging the District Court for the Northern District of Texas to implement the Judicial Conference’s new policy regarding judge shopping as soon as possible. This follows my first letter on this subject dated April 27, 2023, in which I called on you to alter the District Court’s method of assigning cases in relation to single-judge divisions that effectively allow litigants to choose which judge will hear their case. You expressed that you could not unilaterally make that change without agreement from the other judges on your court. Now, the Judicial Conference is calling for a new policy directly related to this particular judge-shopping issue.

In your response letter dated May 16, 2023, you acknowledged the “public perception of improper judge-shopping in single-judge divisions.” However, you then pointed out a number of reasons for which the “random assignment of all civil cases across [your] District would present logistical challenges,” and you listed a number of considerations including “the number and type of civil and criminal cases filed in a division”; “the convenience of the jurors, witnesses, parties, and attorneys”; “the desire of communities to have local judges”; and “the burden of travel on court personnel.” Interestingly, though, you went on to express that the “random assignment of a small slice of civil cases” may not pose the same challenges.

Thankfully, the Judicial Conference’s new policy requires random assignment for—to use your phrase—just “a small slice of civil cases”: only those civil actions seeking to bar or mandate statewide or nationwide enforcement of a state or federal law. Accordingly, it is not clear that implementing this updated policy would present any of the “logistical challenges” in your district that you mentioned or harm any of the considerations you raised previously in your letter. First, the number of applicable civil actions may be small compared to total actions filed. Second, as the Judicial Conference noted, “the value of trying a civil case in the nearest court division becomes less important when the impact of a ruling might be felt statewide or even nationally.” Third, your judges, as well as jurors and court personnel, may not have to travel at all since there is no compelling need for actions with statewide or nationwide implications to be heard in a particular division.

You also noted that the Northern District is “geographically large” and “encompasses more than 96,000 square miles,” suggesting that its size was a barrier to random case assignment, but that may prove to be of trivial importance in this case. In response to a similar policy update from the Judicial Conference in 2022, the Western District of Texas changed its case-assignment rules for patent actions filed in Waco (another small slice of civil cases) so that such cases are now randomly assigned among all of the active judges in that district. That change promoted fairness in our patent system and restored some faith in our judiciary. Furthermore, the Western District is next door to you and encompasses a similar size and population; the business of that district has continued in good fashion in spite of the change. I believe the operations of the Northern District will continue fine if this change to assignment practices is adopted, as well. 

Congress continues to consider whether new legislation is necessary to address procedural issues in the judiciary. In, I request responses to the following questions by April 4, 2024

In calendar year 2023, how many civil actions seeking to bar or mandate statewide or nationwide enforcement of a state or federal law were filed in the District Court of the Northern District of Texas? What percentage of total civil actions filed in the district did this number represent What percentage of total actions filed in the district altogether did this number represent?

             Please also provide the same figures for each division of the District Court of the Northern District of Texas

Local Civil Rule 83.3 for the Northern District of Texas states that “district judges shall determine the method by which all cases are assigned to individual judges.” Please describe that determination process, including (i) whether these determinations are made by unanimous agreement, majority vote, or other method; and (ii) whether any related rule is given “appropriate public notice and an opportunity for comment” before taking effect, as required by 28 U.S.C. 2071(b).

How does your court implement or address public comments?

When will the District Court of the Northern District of Texas adopt the Judicial Conference’s new policy on judge shopping? Is there an annual or quarterly meeting to address possible changes to your local rules? Could such a meeting be called at any time?

Could your court implement the Judicial Conference’s new rule without requiring judges to travel?

Sincerely,

Charles E. Schumer

United States Senator

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