O C F I T B L O G Legal A Numbers Game: Who Would The Judicial Conference’s New Policy Help And Who Would It Hurt?

A Numbers Game: Who Would The Judicial Conference’s New Policy Help And Who Would It Hurt?

A Numbers Game: Who Would The Judicial Conference’s New Policy Help And Who Would It Hurt? post thumbnail image

I have now had some time to digest the Judicial Conference’s policy. So much of what was reported about the policy was not accurate. The Washington Post headline sums things up: “U.S. courts clarify policy limiting ‘judge shopping’—On Tuesday, officials said a new policy would mean assigning certain cases randomly. Now they say it is just guidance.” I still don’t understand how this rollout could have been executed so poorly. 

The policy is only guidance, and is not binding. The policy does not single out single-judge divisions, but randomly assigns cases throughout the district. The policy does nothing at all to address bankruptcy or patent forum-shopping. The policy does not apply to all injunctive relief–only certain types of state or nationwide relief. Critically, cases that have “implications beyond the parties before the court” would be reassigned. There will have to be litigation about what that standard entails. Moreover, this standard is triggered whenever a new complaint or motion is filed. I can imagine some gamesmanship, as plaintiffs who get a bad draw can seek the requested relief as a guaranteed way to get the case reassigned–even after the initial judge may have invested time and effort into the case.

In short, the policy does nothing to directly reduce the number of nationwide and statewide injunctions. Instead, as Judge Sutton explained, the policy is, at best, an “an elegant solution” to reduce nationwide injunctions. What is that “elegant solution”? The policy deprives certain litigants of the venue of their choice, and reassigns it to a venue not-of-their-choosing, where the desired expansive relief is less likely. Will this policy even work?

It is important to unpack four different scenarios: (1) conservative litigants seeking nationwide relief in red states; (2) liberal litigants seeking nationwide relief in blue states; (3) conservative litigants seeking statewide relief in blue states; (4) liberal litigants seeking statewide relief in red states. Here is the upshot of the policy: it will be harder to obtain the desired relief in scenarios #1, #3, and #4, but the odds of obtaining the desired relief in scenario #2 will be virtually unchanged.

Scenario #1:  Conservative litigants seeking nationwide relief in red states

This scenario gets the most national attention: Texas or Mississippi or Louisiana seeks a nationwide injunction or vacatur of a federal policy in a district court within the Fifth Circuit. Indeed, other red states can get in on the action. After all, Missouri v. Biden is being litigated in Louisiana, even though Missouri is in the Eighth Circuit.. And it is no surprise where these suits are filed: never in Houston, Dallas, Austin, New Orleans, or Jackson. Always in the outposts. And this is no surprise. Historically, divisions with one or two judges are filled with an eye towards strategic litigation. By contrast, Republican appointees in large cities can include more traditional types–the law firm partner, the former state court judge, someone who served as a federal prosecutor, and so on. These judges will have the right judicial temperament, and be reliably conservative, but may be less likely to embrace novel legal theories that arise in strategic litigation cases. Conversely, those willing to relocate to the far-flung corners of the state are likely to be younger, less entrenched in polite society, and more comfortable with cutting-edge legal jurisprudence. This is not a secret. Everyone knows how this process works.

If this policy were adopted in the Northern District of Texas, the Southern District of Texas, and the Western District of Texas, the dynamics would be scrambled–at least in the short term. Instead of a virtual lock to draw a judge who was nominated in large part because of their likely views of strategic litigation, the case will more likely than not be assigned to an urban center. And that urban center will have a mix of Democratic-appointees and more-traditional-Republican appointees.

Let’s walk through the numbers. The Northern District of Texas has twelve district judge positions (one of which is vacant), and a handful of senior status judges who draw a reduced case law. (Here, and elsewhere, I will exclude senior status judges from the reassignment wheel to make the numbers easier.) Of the eleven active district court judges, seven are in Dallas, two are in Fort Worth, one is in Amarillo, and one is Lubbock. If nationwide or statewide relief is sought anywhere in the Northern District of Texas, the most likely reassigned division will be Dallas. At present, of those seven Dallas judges, one is a Clinton appointee, and the other six are appointed by Republican Presidents. And right down the interstate in Fort Worth are two Republican appointees.

The Southern District of Texas has nineteen district court positions (two of which are vacant), and a bunch of senior judges who draw a reduced caseload. Seven are in Houston, two are in Brownsville, two are in Corpus Christi, one is in Galveston, three are in Laredo, and two are in McAllen. If nationwide or statewide relief is sought anywhere in the Southern District of Texas, the most likely reassigned division will be Houston. By my count, Houston has four left-leaning judges and three right-leaning judges.

The Western District of Texas has thirteen district court positions (four of which are vacant), and several senior judges who draw a reduced caseload. There are four in San Antonio, one in Austin, one in Del Rio, one in Midland Pecos, and one in Waco. If nationwide or statewide relief is sought anywhere in the Western District, the most likely reassigned division will be San Antonio. San Antonio has about three left-leaning judges and one right-leaning judge.

On balance, this policy would make it harder for conservative litigants in Texas to obtain nationwide relief. As things are presently constituted, filing in the Northern District of Texas is likely the safest venue. Indeed, to stick it to critics, the Texas AG could simply file in Dallas and spin the wheel of fortune.

I haven’t run the numbers yet on Louisiana and Mississippi, but I suspect there would be a similar dynamic, with most cases being filtered to urban areas, where the judges–on balance–lean center-left.

Scenario #2:  Liberal litigants seeking nationwide relief in blue states

Now, let’s return to everyone’s favorite district, the Northern District of California. There are three divisions: San Francisco, Oakland, and San Jose. Granted, Bay Area traffic is dreadful, but is easy enough to travel between these posts–even by public transit. Compare that to the 9 hour drive from El Paso to Waco, which are both in the Western District of Texas. 

There are fourteen judges in NDCA, with one vacancy. There are zero active judges who are Republican appointees. (A senior status Bush appointee, Judge Jeffrey White, recently said that Israel may be engaging in genocide.) If the California Attorney General seeks nationwide relief, there is a 100% chance the California Attorney General will draw a Democratic appointee, with a friendly appeal to the Ninth Circuit.

You will find similar lopsided numbers in the Eastern District of New York, the District of Oregon, the Western District of Washington, the District of Maryland, the District of Hawaii, and other favorable divisions. Any Republican appointees in those states were given blue slips by Democratic Senators. And don’t forget about the D.C. Circuit, which if you exclude the stalwart senior status judges, is one of the most lopsided circuit courts in recent memory. 

You get the picture. I think an underlying presumption of this policy is that those who seek nationwide or statewide relief are doing so for improper reasons. But nothing will change with the ability of California, Hawaii, Oregon, Washington, Maryland, New York, and other states to obtain nationwide relief.

Scenario #3:  Conservative litigants seeking statewide relief in blue states

The new policy would apply not only to parties seeking nationwide relief, but also to parties seeking statewide relief. Any time a state statute is challenged as being unconstitutional, or preempted by federal law, the case will be reassigned. (I suppose a party can only seek summary judgment, but virtually all of these cases are litigated as pre-enforcement challenges, coupled with a TRO or PI.) 

These cases do not gain nearly as much notoriety, but conservative public interest groups do exist in blue states, and they use friendly forums to challenge progressive policies. For example, in New York, the Southern and Eastern Districts are lost causes for conservatives. (The companion case to Roman Catholic Diocese v. Cuomo started off with a defeat before a W. Bush appointee.)  Rather, most of the strategic litigation occurs in the Northern District of New York. Until fairly recently, a suit filed in Syracuse had a roughly 50% chance of drawing a senior judge appointed by one of the Bushes. (I was counsel on a challenge in Syracuse to Governor Cuomo’s order shutting down a religious school in Brooklyn.) And at present, there is only one judge in Binghamton–a senior Reagan appointee. Much of the post-Bruen Second Amendment litigation has been filed in these forums. By contrast, all of the other judges in the Northern District were appointed by Clinton, Obama or Biden. But under the Judicial Conference’s policy, a suit filed anywhere in NDNY is likely to be transferred to Albany, and a Democratic appointee.

I haven’t run the numbers in other districts, but I know that in most blue states, there are small pockets of courts where the odds are better-than-average of drawing a Republican appointee. These pockets would be eliminated. And, on balance, conservative litigants will have more difficulty challenging liberal states policies in blue states. But in red states, the shoe will be on the other foot.

Scenario #4:  Liberal litigants seeking statewide relief in red states

This fourth scenario gets the least attention of all, as Democratic appointees who enjoin Republican policies are considered heroes in polite company. Progressive groups know all-too-well where to sue in red states. Often what looks like a neutral decision–filing in the state capital–is a very strategic choice. Consider the Tallahassee division of the Northern District of Florida. This has long been a bastion of progressive jurisprudence. In my book on the Affordable Care Act litigation, I explained that the Florida Attorney General filed suit in Pensacola, rather than Tallahassee, to avoid now-senior Judge Robert Hinkle. 

Today, filing in Tallahassee gives you (roughly) 3-1 odds of a Democratic appointee. And wouldn’t you know it, Chief Judge Mark Walker seems to draw just about every case that challenges a new Florida law. (This former Judge Boggs clerk has real doubts about how “random” reassignment will work in reality.) Judge Walker issues an injunction everytime Ron DeSantis sneezes. Progressive groups know this, and file in Tallahassee. For a time, Walker had 100% of the cases in Gainesville, while Hinkle had 100% of the cases in Panama City. If the Judicial Conference’s policy was adopted, any suit in Tallahassee seeking statewide relief could be reassigned to Pensacola which leans solid-right.

A similar dynamic would be at play in the Middle District of Florida. Orlando may have once been the happiest place on earth, but the federal court there is a no-go zone for DeSantis-signed legislation. But under the Judicial Conference’s policy, those cases may be reassigned to the more-friendly Tampa division.

Likewise, progressives litigants (including the Biden administration) routinely sue the Texas government in Austin because the options are an Obama appointee, two now-left-leaning senior Republican appointees, and a Reagan appointee from Hawaii who consistently rules against Texas. They’re batting a thousand. To paraphrase Justice Barrett in Lindke v. Freed, the distinction “turns on substance, not labels.” But if the policy were adopted, cases can be reassigned to San Antonio and the hinterlands of west Texas, which has a higher share of Republican appointees. On balance, if the Western District of Texas adopts this policy, it would be better for conservatives and worse for liberals.

The NAACP and other civil rights organizations have their favored spots to file suit in Mississippi, Louisiana, Alabama, and other southern states. Those preferences too may be adjusted. This policy will likely scramble the preferences of the progressives groups in red states–I would not be surprised if they quietly oppose this policy. Or, they find different ways to characterize statewide relief to avoid being dinged by the clerk. Everyone likes forum shopping except when the other side does it.

The Consequences of the Policy

So far I’ve described the impact of this policy as the courts are presently constituted. But nothing is ever fixed. Every action has an equal and opposite reaction. This policy, if enacted widely, will alter the dynamics of judicial nominations in ways that Chief Justice Roberts and his colleagues may not have anticipated.

A future Republican President and Republican Senate will compensate for this policy by adjusting the types of judges appointed to urban centers. Whereas in the past, smaller courts were designated as likely destinations for strategic litigation, if the policy is adopted, every judge is a potential destination. It is no longer a safe bet to put a well-admired 50-year old law firm partner or former state-court judge on the federal bench in urban centers. Too risky with the random reassignments. As much as the Judicial Conference may detest Matt Kacsmaryk, the likely consequence of this policy is to ensure that more Matt Kacsmaryks are appointed to the federal judiciary across all divisions. Mission accomplished! 

The second likely consequence is to affect how blue slips operate. During the Biden Administration, Republican Senators have worked with Democratic Presidents to fill open district court seats as part of packages on circuit court nominees. District Court judges are sometimes considered fungible, because conservative litigants can choose where to file, and avoid compromise Biden nominees. Indeed, blue slips are often contingent on appointing a judge to a particular division. I think the Judicial Conference’s policy undermines that conciliatory approach. Every district court blue slip that is returned is another possible venue for a reassigned strategic litigation case in a red state to be dismissed. In some regards, a district court judge is more significant than a circuit judge, as the former can slow-walk a case and keep it from appellate review. Or worse, transfer the case outside the Circuit, where it is virtually impossible to bring back. (See recent attempts to send SpaceX’s case from Texas to California.) The likely consequence of this policy is that seats will go unfilled, and judicial vacancies will become longer. Along similar lines, I think Democratic Senators would not play ball on district court nominees with Republican presidents, to ensure their strategic litigation is unaffected. Ultimately, I think judicial vacancies will increase in states. 

I’ll close this already-too-long post by repeating my initial reaction: the Judicial Conference has waded into a political minefield. In an attempt to appear apolitical, the judges have injected themselves into a political brawl. I highly doubt Judge Sutton realized that his remarks to the press would trigger a floor speech by Senator McConnell. If I had to guess, Sutton thought this was an opportunity to educate reporters about the dangers of nationwide injunctions, and he may have gone beyond the talking points of the new policy. One reporter told me it was Sutton’s first day on the job! I don’t know if the policy that was released on Friday was modified after the Sutton kerfuffle, or whether Sutton went off script. Justices sometimes do this during oral handdowns of opinions. In any event, I doubt the Judicial Conference will revisit the policy. I’ve learned the policy was accepted by acclamation without any discussion or dissent, including by the Chief Judge of the Fifth Circuit. Who would move to reconsider the policy? 

What happens next?

At this point, the ball is in each district court’s court. This guidance is just that–guidance. They can choose to continue their present practices, and not adopt the policy. If they choose that course, they will be criticized by all the regular suspects on social media. Thankfully, life tenure insulates judges from such noise. But if they adopt the policy, the consequences I described above may make the situation far worse than it is now, without doing anything to reduce nationwide injunctions. I am not convinced that nationwide injunctions and forum shopping are significant problems. Appellate review exists to remedy those, as attested to by Judge Kacsmaryk’s win-loss record at the Supreme Court. (Though the Court recently declined to stay his ruling about the Texas A&M drag show.) But this policy creates far more negative consequences than are justified to address this minimal problem.

There are also several pragmatic reasons why courts should reject this policy. First, it creates significant administrative work with substantial burdens on court staff: every complaint that is filed, and every motion for injunctive relief, will trigger a new review process. Cases will be reassigned–perhaps after a judge has already invested time and energy in a case. Second, there are risks of gamesmanship. Plaintiffs who do not like the judge they draw can simply amend the complaint, as a matter of right, and seek reassignment. This policy may reduce judge-shopping at the outset, but it will guarantee judge-shopping after the case is filed.

Third, not every judge will want to handle high-profile strategic litigation cases. These are complex cases that bring significant press attention–even death threats. Not every federal judge wants to deal with that nonsense. Whether you like it or not, Judge Kacsmaryk has more experience with difficult APA cases than just about any judge outside D.D.C. Fourth, some judges who are not receptive to conservative litigants will be hesitant about losing progressive litigants. Again, progressive groups will lose their forum of choice to challenge red-state litigation.

Fifth, adhering to this policy would alter how judges are selected, and likely yield fewer blue slips and more vacancies. Sixth, the entire genesis of this policy is to respond to political criticism from Senators Schumer and Whitehouse and some law professors on Twitter. The courts may not be willing to be viewed as tools to respond to political pressure. The safest course for these judges is to simply say: let Congress, who established the districts and divisions, decide how cases are assigned.

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