Two conservative federal appeals court judges on Wednesday criticized judicial policymakers for adopting a new rule aimed at curtailing "judge shopping" by state attorneys general, activists and others who challenge government policies in courthouses where one or two sympathetic judges hear most cases.
U.S. Circuit Judges James Ho and Edith Jones of the 5th U.S. Circuit Court of Appeals in separate statements said the policy approved by the U.S. Judicial Conference on Tuesday was the result of political pressure and conflicted with federal law.
The rule the 26-member Judicial Conference approved was designed to curb a litigation strategy used by conservative litigants to challenge Biden administration policies, often in one-or-two judge courthouses in Texas.
"Judges are supposed to follow the laws enacted by Congress, not bend the rules in response to political pressure," Ho said in a statement.
A spokesman for the Administrative Office of the U.S. Courts had no comment.
Many of the lawsuits at issue were filed in small federal courthouses in Texas, whose one or two judges, appointees of Republican presidents, have regularly delivered wins for Republican state attorneys general, activists and companies seeking to block policies concerning abortion, immigration, gun control, labor law and other hot-button issues.
Local rules had ensured that cases filed in a specific courthouse, or division, were heard by those judges and were not assigned randomly to a judge within the larger district.
Texas' four districts are subdivided into 27 divisions. Appeals from those Texas judges' rulings go to the New Orleans-based 5th Circuit, which has at times sustained the decisions.
Jones, an appointee of former President Ronald Reagan, and Ho, an appointee of former President Donald Trump, are two of the 12 Republican appointees on the 17-member 5th Circuit, considered by many to be the nation's most conservative appeals court.
The Texas cases prompted calls from Democratic lawmakers, the Biden administration, the American Bar Association and others for the federal judiciary to change the system to ensure cases challenging national policies are heard by a random judge.
The new rule adopted by the Judicial Conference will require lawsuits challenging state and federal laws to be assigned a judge randomly throughout a federal district, rather than staying within the specific court, or division, they were filed in.
U.S. Circuit Judge Jeffrey Sutton, a 6th Circuit judge who chairs the Judicial Conference's executive committee, said the policy addressed a long-standing issue that predated Biden and that random assignment was "just a good idea."
"We get the idea of having local cases resolved locally, but when the case is a declaratory judgment action, national injunction action, obviously the stakes of the case go beyond that small town or that division," said Sutton, an appointee of Republican former President George W. Bush.
But Jones in an email pointed to a federal statute that gives district courts control over the allocation of cases on their dockets.
"Aside from many complications spawned by this new policy, and the fact that complaints started with the patent docket, not about 'federal' cases, it appears to conflict with that law," she said.
Ho said if "reformers are sincerely troubled by venue shopping, they can start by examining the serious concerns that have been voiced about our Nation’s bankruptcy and patent dockets."
Chief U.S. Supreme Court Justice John Roberts, who presides over the Judicial Conference, in his 2021 year-end report called for a study of how patent cases were assigned judges following concerns by senators about a concentration of patent cases filed in single-judge divisions like Waco, Texas.
The Judicial Conference's Court Administration and Case Management Committee during that study determined similar issues might occur in other types of litigation. It proposed Tuesday's rule, which did not address patent cases.
The Western District of Texas has since adopted a local rule requiring patent cases filed in Waco, where U.S. District Judge Alan Albright presides, to be split between Albright and the district's other judges.
Its chief judge, Alia Moses, in an interview Wednesday said assigning patent disputes district-wide has at times meant judges in her large district need to drive hours to preside over a case, taking away time from other matters on their dockets.
But Moses, also a George W. Bush appointee, said she understood why the Judicial Conference acted to deter forum shopping. "The mission or objective of the rule is laudable given the dynamics of what we are seeing in the courts," she said.
Read more:
US federal judiciary moves to curtail 'judge shopping' tactic
U.S. Chief Justice Roberts pledges to review patent venue rules
