Rules Panel Tracking Response to US Judge-Shopping Guidance

A federal panel will watch to see how district courts respond to newly released guidance aimed at curbing judge shopping as it weighs whether to proceed with a binding rule against the practice.

The judiciary’s Advisory Committee on Civil Rules will keep the topic on its agenda, chair and US District Judge Robin Rosenberg said at a meeting on Tuesday in Denver.

Rosenberg made the remarks as the committee investigates whether it has the authority to pass a rule addressing judge shopping, in light of a federal law that says chief district judges set the case assignment policies for their districts.

Judge shopping—or parties filing lawsuits in certain courts with the hope of having their cases heard by a judge they think might be favorable to their arguments—has come under national scrutiny.

The attention has intensified as right-leaning challenges to Biden administration policies fill federal trial courts that fall under the jurisdiction of the conservative-led US Court of Appeals for the Fifth Circuit.

The judiciary’s policy-making body, the Judicial Conference, in March passed a non-binding policy against judge shopping. The judiciary also told federal district courts that they should take steps to guard against the practice.

Andrew Bradt, the advisory committee’s associate reporter and a law professor with the University of California, Berkeley, said Tuesday that he is still investigating whether a federal rule addressing judge shopping can be adopted.

He said that a law clerk for the committee will track how district courts respond to the judiciary’s guidance, saying those results will be “extremely educational for us.”

Brian Boynton, principal deputy assistant attorney general at the Justice Department’s Civil Division, said at the meeting that the department supports continuing to look at the issue.

He said DOJ is “very happy to help” in examining whether the judiciary has the authority to adopt a rule addressing case assignment practices and to help figure out what that rule should look like.

Boynton wrote a letter to the committee last year arguing that the judiciary can and should adopt such a rule.

The Northern District of Texas, which includes Dallas, has come under scrutiny for litigants judge shopping there, as the court’s case assignment rules state that civil lawsuits filed in certain divisions are heard by specific judges.

Chief US District Judge David Godbey of the Northern District told Senate Majority Leader Chuck Schumer (D-NY) in a letter when that the court wouldn’t immediately change its case assignment policies in response to the guidance. Schumer said the Senate will “consider legislative options” in response.