The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Senator Schumer's Letter to Chief Judge Godbey (NDTX)
If you don't do what I want, "Congress will consider more prescriptive requirements."
On Thursday, Senator Charles Schumer, the Majority Leader, sent a letter to the presiding officer of a federal court. No, it was not Chief Justice Roberts. Senator Durbin has that task locked down. Rather, Schumer sent the letter to Chief Judge Godbey of the U.S. District Court for the Northern District of Texas.
The theme, if you couldn't guess, concerns case assignment in single-judge divisions in Amarillo, Wichita Falls, and Lubbock. (I've written about this topic at some length here and here.)
Even though the Northern District has twelve active judges and another four senior judges who still hear cases, your orders provide 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; and cases filed in the Abeline, Lubbock, and San Angelo Divisions are split between just two judges. As a result of your recent assignment orders, plaintiffs in your district can now effectively choose the judge who will hear their cases.
Schumer issued an ultimatum: the court should "randomly" assign cases filed in "rural divisions," or else.
The Northern District of Texas could, and should, adopt a similar rule for all civil cases. Currently, a federal statute allows each district court to decide for itself how to assign cases. This gives courts the flexibility to address individual circumstances in their districts and among their judges. But if that flexibility continues to allow litigants to hand-pick their preferred judges and effectively guarantee their preferred outcomes, Congress will consider more prescriptive requirements.
It has come to this. The Senate Majority leader, who has no chance of actually passing court reform legislation, is issuing empty ultimatums to a federal judge. Anyone who can count to sixty knows such "prescriptive requirements" are dead on arrival. And certainly Schumer knows that as well. But Schumer's intent, like that of Durbin, is not to actually engage in good-faith discussions with the judiciary. Rather the goal, as always, is to undermine the authority of judges he disagrees with.
To quote Justice Alito:
It "undermines confidence in the government," Justice Alito says. "It's one thing to say the court is wrong; it's another thing to say it's an illegitimate institution. You could say the same thing about Congress and the president. . . . When you say that they're illegitimate, any of the three branches of government, you're really striking at something that's essential to self-government."
There have been no actual allegations that judges assigned to the Amarillo or Wichita Falls divisions have engaged in any judicial misconduct. (And no, authorship of a law review article that a judge did not actually write does not actually matter.) These judges have not been mandamused or reassigned by the court of appeals. None of the progressive judges on the Fifth Circuit have, in dissent, charged these judges with malfeasance. And no bar complaints have been filed against the Texas Attorney General or other plaintiffs who have filed in these forums. DOJ has filed motions to transfer cases in these divisions. And, those motions have been denied. In doing so, these courts have rejected the premise of Schumer's letter: that single-judge divisions undermine public confidence in the judiciary. Senator Schumer is, in effect, seeking reconsideration of what Judges Tipton, Kacsmaryk, and others have already ruled. The chief judge of a federal district cannot sit in judgment of another district judge in his district. That job belongs to the court of appeals alone.
I am well aware that in 2016, Judge Godbey's predecessor reassigned 15% of cases from the Wichita Falls division to herself. That was a controversial decision at the time, and one that was never fully justified. And Judge Godbey reversed that decision in 2022. I think it quite problematic for a single judge to take it upon herself to address what are, in effect, substantive grievances with a district court's rulings. From a pragmatic perspective, I am truly skeptical that all of the judges in Dallas would be willing to pick up a random share of cases in Amarillo or Lubbock. And no, as Senator Schumer suggests, remote hearings would not be an adequate substitute for actual parties in those communities.
The bigger problem, of course, is that Schumer has now boxed in Judge Godbey. If the Judge takes the sort of action that Schumer demanded, then he will be seen as caving to legislative pressure. If he ignores Schumer, he will be seen as enabling "judge shopping." And law professors on Twitter will beat their drums.
My recommendation? Do nothing now. DOJ filed motions to transfer, which were denied. Those motions will be appealed to the Fifth Circuit. If the Fifth Circuit affirms those motions, then Judge Godbey will have definitive ground to maintain the status quo. Acting now would be premature, and frankly, would weaken the separation of powers and judicial independence.