After Sounding The Alarm On MAGA Extremists Exploiting Glaring Loopholes In Free And Fair Trials Due To The Set-Up Of Texas’ Northern District, Majority Leader Schumer Leads 18 Senators In Pushing To End The Anti-Democratic Practice Of Forum Shopping And Return Confidence To The Judicial System

Washington, D.C. –Senate Majority Leader Chuck Schumer (D-NY) led Senators Warren (D-MA), Padilla (D-CA), Hirono (D-HI), Wyden (D-OR), Blumenthal (D-CT), Cardin (D-MD), Baldwin (D-WI), Markey (D-MA), Warnock (D-GA), Gillibrand (D-NY), Murray (D-WA), Feinstein (D-CA), Cortez Masto (D-NV), Shaheen (D-NH), Welch (D-VT), Heinrich (D-NM), Menendez (D-NJ), and Booker (D-NJ) in sending the following letter to the Honorable Robin L. Rosenberg, Chair of the Advisory Committee on Civil Rights urging her to provide recommendations to every district court to address the issue of forum shopping and restore fairness to our federal judiciary.

Senate Majority Leader Chuck Schumer (D-NY) led 18 Democrats Senators, in sending a letter to the Chair of the Advisory Committee on Civil Rights, the Honorable Robin L. Rosenberg. The Senators are calling on the Judicial Conference to consider reforms to the judicial system that would stop the unfair practices of allowing litigants to hand-pick district judges that they view as sympathetic to their cases and restore fairness and justice to the court system. In certain districts across the country, local rules dictate that only one or two judges can be assigned to a certain geographical area, as opposed to the vast majority of districts, where judges are assigned at random. The result is a two-tiered justice system where in certain places, plaintiffs can choose to file in areas where they know the ideological beliefs of the one or two judges that sit on the bench.

“Americans’ faith in the judicial system is at an all-time low following the hijacking of our court system by the MAGA right,” said Majority Leader Schumer. “It is a complete perversion of the intent of the judiciary to leave open this glaring loophole that allows plaintiffs to effectively choose their judges. The Northern District of Texas is a particularly egregious example of this practice in action and defies any good-faith explanation as to why specific judges are assigned to certain divisions. Without reforms, these activist judges will continue to impose their will on the country and offer flawed and chaotic rulings on abortion access, LGBTQ+ protections, legal immigration, and climate legislation. We cannot allow these anti-democratic practices to run rampant and we must fight to preserve the integrity of our courts.”

One of the most egregious examples of “forum-shopping” is in the Northern District of Texas. Even though there are sixteen judges who can hear cases,  a relevant special order provides that civil cases filed in many divisions are always assigned to a single judge or one of just a few. As a result, plaintiffs can decide who will hear their case simply by changing where they file their lawsuit. U.S. District Judge Matthew Kacsmaryk, the only judge in the Amarillo Division, rose to infamy this year when he singlehandedly issued a ruling suspending the FDA approval of mifepristone, an abortion drug that has been available for decades. Judge Kacsmaryk has shown himself to be sympathetic to the anti-abortion movement, and it is clear that he was targeted specifically for this purpose. His ruling was unprecedented, marking the first time a judge has issued a ruling to take a drug off the market despite the objections of the FDA. Judge Kacsmaryk continues to be the jurist of choice targeted by anti-choice activists. Judge Kacsmaryk currently has a case on his docket where the state of Texas and an anonymous plaintiff are suing Planned Parenthood for more than $1.8 billion dollars with a trumped-up and baseless claim. It is clear that right-wing extremists will continue to use him and his court to impose rulings that affect the entire nation unless this system is forced to change.

In April, Leader Schumer urged the Chief Judge of the United States District Court for the Northern District of Texas, David Godbey, to reform the District Court’s method of assigning cases. In his response to the Majority Leader’s letter, Godbey noted that he was “cognizant of the public perception of improper judge-shopping in single-judge divisions,” but refused to end the court system’s practice of forum shopping.

The Senators understand that there may be good-faith reasons for why districts would assign judges to specific divisions. But they are urging the Judicial Conference to recommend rules to all district courts that would promote uniformity. Additionally, Congress is considering whether new legislation is necessary to address this issue.

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

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Dear Chair Rosenberg:

We write to you today about the issue of judge shopping. Specifically, in some federal judicial districts, plaintiffs can effectively choose the judge who will hear their cases due to local court rules governing how matters are assigned. In other districts, local rules require cases to be assigned randomly among all of the judges serving in the district. As a result, based on geography, 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. Congress requires the Judicial Conference to submit “recommendations to the various courts to promote uniformity of management procedures…of court business.”[1] We urge you to provide applicable recommendations to every district court in order to address this problem and restore fairness to our federal judiciary.

One notable example of this issue occurs in the Northern District of Texas. Even though the Northern District has twelve active judges and another four senior judges who still hear cases, the relevant special order[2] provides that civil cases filed in many divisions are always assigned to a single judge, or to one of just a few: cases filed in the Amarillo Division are always assigned to Judge Kacsmaryk; cases filed in the Wichita Falls Division are always assigned to Judge O’Connor; cases filed in the Abilene, Lubbock, and San Angelo Divisions are split between just two judges; and cases filed in the Fort Worth Division are split between three. Consequently, plaintiffs can effectively choose the exact judge (or set of a few judges) who will hear their cases by choosing the courthouse in which they sue. The State of Texas itself has sued the Biden Administration at least 31 times in Texas federal district courts, but it has not filed even one of those cases in Austin, where the Texas Attorney General’s office is located. Instead, Texas has always sued in divisions where case-assignment procedures ensure that a particular preferred judge or one of a handful of preferred judges will hear the case. That includes the Northern District’s Amarillo Division, where Texas has filed seven of its cases against the federal government. Many other litigants have done the same, including the Alliance Defending Freedom in its case challenging the FDA’s approval of mifepristone.

Nothing requires any district to let plaintiffs choose their judges like this. Federal law splits many districts into two or more divisions, but these are geographical only. We acknowledge that there may be good-faith reasons for districts to assign judges to specific divisions. Such splits may reduce travel times for judges, jurors, criminal defendants, and other litigants by allowing cases to be tried locally. On the other hand, any logistical inconveniences must be balanced against unfairness in judicial process. Furthermore, with electronic filing, divisions need not affect judicial assignments at all. Some district courts with many divisions divide civil cases randomly between all their judges, regardless of where the case is filed. The Northern District of New York is—like the Northern District of Texas—a geographically large district split into many divisions. But the Northern District of New York assigns all of its judges to all of its divisions and randomly divides all cases between all of them, regardless of where the cases are file‌‌d.[3]

The Judicial Conference recently highlighted issues related to “judicial assignment and venue for patent cases in federal trial court,” and Chief Justice John Roberts affirmed the Conference’s support for “random assignment of cases.”[4] Shortly thereafter, the Western District of Texas changed its case-assignment rules for patent cases filed in Waco so that such cases are now randomly assigned between all eleven active judges in the district and one senior judge.[5] While this was a positive development, it is unclear why this principle should not apply to every district court for every area of the law.

Congress currently allows each district court to decide for itself how to assign cases.[6] This gives courts the flexibility to address individual circumstances in their districts and among their judges. But that flexibility is permitting litigants to hand-pick their preferred judges and effectively guarantee their preferred outcomes. Accordingly, the Judicial Conference should recommend rules to all district courts that would promote uniformity in the federal courts.

Additionally, as Congress considers whether new legislation is necessary to address this issue, we request responses to the following questions by Monday, July 24, 2023:

1. Which divisions across the nation have local rules that guarantee one district judge will hear all (or nearly all) cases filed in those divisions?
1. What considerations may justify such local rules?
2. What options are available to guarantee variability in the assignment of cases to district judges?
1. Through what mechanisms could such options be implemented?
3. How often does the Judicial Conference “submit suggestions and recommendations to the various courts to promote uniformity of management procedures and the expeditious conduct of court business,” as required by statute?
4. What other options should Congress consider to reduce judge shopping, both at the district-court level and circuit-court level?
5. Is there any requirement that district courts publicize their division-of-business orders?
1. If not, will the Judicial Conference consider adopting such a requirement?

Sincerely,

Charles E. Schumer

United States Senator

Elizabeth Warren

United States Senator

Alex Padilla

United States Senator

Mazie Hirono

United States Senator

Ron Wyden

United States Senator

Richard Blumenthal

United States Senator

Ben Cardin

United States Senator

Tammy Baldwin

United States Senator

Edward Markey

United States Senator

Reverend Raphael Warnock

United States Senator

Kirsten Gillibrand

United States Senator

Patty Murray

United States Senator

Dianne Feinstein

United States Senator

Catherine Cortez Masto

United States Senator

Jeanne Shaheen

United States Senator

Peter Welch

United States Senator

Martin Heinrich

United States Senator

Robert Menendez

United States Senator

Cory Booker

United States Senator

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