Senate Majority Leader Charles E. Schumer said he will strike back with legislation after a court in Texas said it won’t agree to his demand to change how it assigns cases — a seemingly technical issue, but with significant implications for how some major cases are decided.
At issue are federal courthouses where only one judge hears cases. Depending on how cases are assigned, plaintiffs can sometimes be assured of the judge.
Plaintiffs can sometimes orchestrate their cases to file in a single-judge courtroom where they are virtually guaranteed a judge likely to deliver a favorable outcome — what’s known as judge-shopping.
Mr. Schumer called that an “odious practice” and has urged courts to adopt guidelines written by a national panel of judges that would instill some randomness into the selection process.
The federal district court in northern Texas that Mr. Schumer had been targeting rejected the guidelines, and the New York Democrat said he would try to force it to adopt the changes.
“The American people deserve to have faith in the fairness of our court system, and it is clear that the Judicial Conference’s new policy moves our legal system in the right direction,” he said. “The Senate will consider legislative options that put an end to this misguided practice.”
Mr. Schumer has been particularly aggrieved by cases decided by Judge Matthew Kacsmaryk, a Trump appointee. Judge Kacsmaryk is one of 11 regular judges for the Northern District of Texas but the only one who sits in Amarillo, giving plaintiffs who file there a good assurance he will be deciding.
He has issued major rulings blocking a lenient Biden immigration policy and curtailing the use of mifepristone, the chemical abortion drug.
Left-wing plaintiffs also court-shop. They have filed cases in courtrooms that feed into the 9th U.S. Circuit Court of Appeals, famous for its liberal approach to interpreting immigration law.
Josh Blackman, a professor at South Texas College of Law, said the U.S. District Court for the Northern District of California has 14 judges, not one appointed by a Republican.
That court has become a favorite for immigrant rights groups to sue to stop enforcement policies.
Mr. Blackman said Mr. Schumer’s vow to pass legislation is probably toothless, given the makeup of Congress and Republicans’ opposition to his plan.
“I think he’s just trying to put pressure on the courts,” said Mr. Blackman, who has been following the saga of the changes since the panel of judges, known officially as the Judicial Conference, first announced them on March 12.
Under the rule announced by 6th U.S. Circuit Court of Appeals Judge Jeffrey Sutton, who chairs the conference’s executive committee, cases that sought statewide or nationwide injunctions would be doled out to judges districtwide, undermining the ability to pick a judge by filing in a particular courthouse.
He told reporters that the policy would be mandatory.
“The idea behind this most recent amendment is to say 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,” Judge Sutton said.
The conference later clarified that the policy was only a suggestion and not mandatory.
The conference bizarrely didn’t publish the new rule at the time, adding to the confusion.
Mr. Blackman said the conference acted without knowing how often single-judge courtrooms issue nationwide injunctions, so the extent of the problem is not clear.
Last month, nearly 20 Republican senators penned a letter urging judges to ignore the guidance and what they called Mr. Schumer’s attempt “to bully the courts.”
They said Congress has left individual courts to decide how to schedule and assign cases and that the Judicial Conference’s attempt to intervene smacked of politics.
“We — like Alexander Hamilton — believe the courts are at their best when they remind the political branches to stay in their respective lanes, not when the courts decide to swerve into politics themselves,” wrote the senators, led by Minority Leader Mitch McConnell, Kentucky Republican.
The court where Judge Kacsmaryk sits, the Northern District of Texas, has told Mr. Schumer to leave the matter alone.
“The district judges of the Northern District of Texas met on March 27, 2024, and discussed case assignment. The consensus was not to make any change to our case assignment process at this time,” Chief Judge David C. Godbey wrote in a March 29 letter to Mr. Schumer.
Mr. Blackman said he doubts others will adopt the policy because Congress gave them the power to set their own rules and the Judicial Conference’s plan was riddled with pitfalls.
As one example, he said plaintiffs who filed a regular case and were assigned a judge they didn’t like could amend their case to demand a nationwide injunction, spinning the roulette wheel for a new judge to be assigned.
“I don’t think they thought this through for a moment,” Mr. Blackman said. “This is a PR policy. It’s meant to show The New York Times and Chuck Schumer, ‘We’re doing something.’ But in reality, it wouldn’t actually solve the problem. It might make it worse.”
Mr. Schumer has long been among the most aggressive members of Congress in trying to shape the judiciary and its rulings.
Two decades ago, as a more junior senator, he held hearings arguing that the Senate must consider ideological “balance” when confirming judges. Many legal observers at the time argued that judges should be considered based on their experience and scholarship rather than perceived ideological rulings.
In 2020, Mr. Schumer stood on the steps of the Supreme Court and told Justices Neil M. Gorsuch and Brett M. Kavanaugh that they would “pay the price” and “won’t know what hit you” if they continued to make what the senator considered “awful decisions.”
Mr. Schumer later said the remarks “didn’t come out the way I intended.”
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
Please read our comment policy before commenting.