A conservative federal appeals court judge argued in a speech that judicial policymakers wrongly caved into political pressure to curtail "judge shopping" with a policy change that would deter right-leaning litigants from steering cases to preferred judges.
U.S. Circuit Judge James Ho, in a speech delivered on Monday to the Midland County Bar Association in Texas, argued that the U.S. Judicial Conference's new judicial assignment policy undercut the judiciary's independence by giving into critics engaged in "forum shaming."
"Judges are supposed to follow the law, not distort the rules to avoid criticism," Ho said, according to his prepared remarks. "The last thing we should do is gerrymander the rules in response to political pressure."
Under the March 12 policy, any lawsuit challenging federal or state laws would be assigned a judge randomly throughout a federal district rather than stay in the specific, smaller division, or courthouse, where the case was initially filed.
If implemented, the policy would disrupt a tactic often used by conservative litigants of filing cases in small divisions in Texas' four federal districts whose one or two judges were appointed by Republican presidents.
Those judges have often rule in their favor on issues like abortion, immigration and gun control.
The new policy is non-binding, though, leaving it to individual district courts to decide whether and how to follow it. The chief judge of Texas' Northern District has said it does not plan to adopt it for now.
Ho, a member of the conservative-majority 5th U.S. Circuit Court of Appeals, was an early opponent of the policy, and in Monday's speech argued that conservatives do not have a monopoly over forum shopping.
Such "blatant forum shopping" was an inevitable outcome of a system in which attorneys zealously advocating for the clients are given the legal flexibility by Congress to select their venue under laws organizing the judiciary, Ho said.
He noted long-standing, bipartisan concerns in Congress about the extent judges engage in "forum selling" in the bankruptcy and patent arena by "tilting their decisions in order to attract the cases they most want."
Yet Ho said the Judicial Conference's policy did nothing to address those concerns and failed to address the real danger of single-judge divisions: the potential for a single judge to issue a nationwide injunction that affects the entire country.
"But if nationwide injunctions are a problem, then let's get rid of them," Ho said.
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