Life-tenured judges play the long game. Last spring, the Judicial Conference adopted, without any debate, a "binding" policy that would force reassignment of cases seeking nationwide relief. After some controversy, the mandatory policy suddenly became "optional guidance." And over the past few months, a handful of districts have adopted this policy. The overwhelming majority have done nothing. And other districts, including the U.S. District Court for the Northern District of Texas, rejected the policy. This process played out exactly as Congress intended: 28 U.S.C. 137 expressly delegated rules concerning case assignment to "the rules and orders of the court." Each District Court can decide these matters for itself.
But if at first you don't succeed, try, try again. Or in the world of the federal judicial bureaucracy, send it to a committee! Tomorrow, the Rules Committee will consider the issue of case assignment. And they will consider whether to adopt the Judicial Conference's reassignment policy by virtue of modifying the Federal Rules of Civil Procedure. If you read Page 415 of the agenda (and who hasn't!), you will find that the committee expressly recognizes that this might be contrary to federal law!
There is also a strong argument that assignment of cases among the judges in a district is within the Congress's jurisdiction. Since the Judiciary Act of, Congress has statutorily provided for case assignment to be left to the districts in the first instance, and this remains the case today. 28 U.S.C. § 137(a) provides that, "[t]he business of a court having more than one judge shall be divided among the judges as provided by the rules and orders of the court.
In the wake of the Judicial Conference guidance, Senators McConnell, Cornyn, and Tills stated their views in a letter to the Chief Judge for the Eastern District of Kentucky: It is Congress that decides how cases should be assigned in the inferior courts and Congress has already spoken on this issue in an enacted statute: Congress gave that power to the individual district courts. Whatever the Judicial Conference thinks you ought to do, what you actually choose to do is left to your court's discretion under the law.7
A Federal Rule of Civil Procedure could potentially supersede this statute if it complies with the strictures of the Rules Enabling Act and is approved by Congress. It would require consideration of whether a rule regarding case assignment is within the Enabling Act's delegation of authority to "prescribe general rules of practice and procedure," 28 U.S.C. § 2072(a). One could assert that a rule governing the assignment of cases is one of practice and procedure, as it does not implicate the merits of any claim. Such a judgment must be considered in the context of the history of the Congressional delegation of power to divide judicial business to the districts themselves. This issue will remain on the Advisory Committee's agenda as the districts continue to react to the Judicial Conference guidance. The Reporters will continue to monitor the situation as it develops.
