Courts often complain about judge-shopping—lawyers who try to game the system to make sure that a particular judge or panel of judges hear their cases. In the Seventh Circuit, for example, the official Practitioner’s Handbook for Appeals assures us:
Assignments of judges to panels are made about a month before the oral argument on a random basis. In death penalty appeals, panels are randomly assigned when the appeal is docketed. Cir. R. 22(a)(2). Each judge is assigned to sit approximately the same number of times per term with each of his or her colleagues.
This rather specific rule is simply one example. As one study published in the Texas Law Review concluded, “To create neutrality, all federal circuits purport to rely on the random assignment of judges to panels.” Go to the website of the Administrative Office of the U.S. Courts and it assures us that judges are assigned to cases, randomly. Courts may use different methods but the goal is the same: each circuit must have in place a system that creates panels of judges picked in a way that prevents judge shopping.
Judge assignment methods vary. The basic considerations in making assignments are to assure equitable distribution of caseloads and avoid judge shopping. By statute, the chief judge of each district court has the responsibility to enforce the court’s rules and orders on case assignments. Each court has a written plan or system for assigning cases. The majority of courts use some variation of a random drawing. (Emphasis added).
Indeed, if lawyers try to game the system, they are subject to attorney discipline. Consider Grievance Administrator v. Fried. Two judges in a county had close relatives who practiced there. Local lawyers advised clients to hire the relevant relative as co-counsel to force the recusal of the judge if the client wanted his case reassigned from one judge to the other. The Attorney Disciplinary Board dismissed the charges against the lawyers, but the Michigan Supreme Court reversed and remanded for further proceedings. The Supreme Court held a lawyer is subject to discipline if that lawyer participates as co-counsel in a suit for the sole purpose of recusing a judge because of the lawyer’s familial relationship with that judge. Robinson v. Boeing Co. discusses lawyers who use “manipulation or impropriety” to disqualify the trial judge “to whom the case has been randomly assigned.” This court allowed the trial judge to refuse to allow an additional counsel to come into the case because that would have forced the trial judge’s recusal. Another case is McCuin v. Texas Power & Light Co. There, the Fifth Circuit held that a “lawyer may not enter a case for the primary purpose of forcing the presiding judge’s recusal.” A litigant should not be able to “veto the allotment and obtain a new judge by the simple expedient of finding one of the judge’s relatives who is willing to act as counsel, it would become possible for any party to disrupt preparation for, or, indeed, the trial itself.” When the judge is “threatened with such maneuvers,” the judge “need not confine itself to grievance proceedings against errant counsel” but may also disqualify the offending lawyer.
Yes, lawyers may not manipulate the system to assure that certain judges sit or do not sit on case. That is what the case law tells us. It turns out, however, that the court does not practice what it preaches, at least when one considers the Ninth Circuit. Statisticians use “bias” as meaning a deviation from the expected outcome. When a three-judge panel of the Ninth Circuit invalidated state bans on same-sex marriage in Idaho and Nevada in October 2014, the panel included both Judge Stephen Reinhardt and Judge Marsha S. Berzon. Since 2010, the Ninth Circuit has heard 11 gay rights cases. Judge Reinhardt was on the panel in four of them while Judge Berzon was on five. Eighteen of the court’s active judges served on no same-sex marriage case. How likely are these panels the product of chance? The brief filed by Coalition for the Protection of Marriage presents its statistical analysis and methodology that shows the odds are 441-to-1. They are asking for the case to be reheard en banc. That would remove the objection that in the Ninth Circuit, some cases are more random than others are.
If the Ninth Circuit has not been entirely random in its assignment of cases that would hardly be the first time a court was caught with its hands in the cookie jar. Another statistical study, which professors of political science and law from Washington and Lee School of Law, Emory University, and Pennsylvania State University came to similar conclusions. They examined a different universe of cases—the discretion held by chief judges to designate district court judges to three-judge appellate panels. Their result, published in the University of New Hampshire Law Review in 2012, also concluded that there was “clear and consistent evidence that chief judges, in making designation decisions, tend to choose individuals with similar ideologies,” in an attempt to influence the outcome. A 2014 study by law professors from the University of Chicago and Duke came to similar conclusions. They did not limit themselves to a subset of cases (e.g., same-sex marriage) but instead assembled “the largest dataset of panel assignments of those courts constructed to date.” Their conclusion of non-randomness was contrary to the “fundamental academic assumption” that three-judge panels in the federal circuits are “randomly configured.” The authors have a “roughly 98% confidence that the evidence of non-randomness that we detected for the ideological balance of panels cannot be explained by chance alone.” One of the professors in this study added, “If any of the 12 circuits are using a nonrandom process, it’s most likely to be the Ninth Circuit.” That is the stellar reputation that the Ninth Circuit now has.
A lawyer for the plaintiffs in the Ninth Circuit case denied that there was non-random selection of judges, but how would he know? He was not involved with selecting the panel. What is more interesting is the response of the Ninth Circuit. It denied that it assigned cases in a non-random manner. Then, it noted, almost casually, that the procedure, apparently after the complaint, has now changed:
Until recently, though, the court used a different procedure for assigning cases on a fast track, like the marriage case. They were assigned to the available panel with the most senior presiding judge, said the Ninth Circuit’s chief judge, Alex Kozinski. Judge Reinhardt, who was appointed by President Jimmy Carter, is one of the most senior active judges and so was disproportionately likely to be the presiding judge.
That procedure was changed to ensure “more randomness,” Ms. [Cathy A.] Catterson [the Ninth Circuit’s top administrator] said. (Emphasis added.)
This response raises more questions than it answers. First, if the prior practice (“a different procedure”) was good, why did it end when the complaints became public? Second, why would anyone assign to the most senior presiding judge all “cases on a fast track”? Third, why are marriage cases on a fast track? Finally, how does randomness become “more randomness”? The Administrator never answered any of these questions.
When Judge Kozinski was asked, “When (if ever) were Ninth Circuit judges generally informed of this practice [of assigning expedited cases to the available panel with the most senior presiding judge]?”, his response was, “I don’t know. Perhaps before my time.” When he was asked what was the justification for the prior practice, his response was, “Can’t say I gave it much thought.”
All this speculation would end if the Ninth Circuit (and other circuits as well) made their assignment procedures transparent. Whatever formula they use, they can tell us. When they deviate from that formula, they tell us what they did and why they did it. We know that the all the federal appeals courts purport to assign cases randomly, but also that it is very difficult to find out, for any circuit, what its procedures are. Congress has considered a statute mandating randomness, but has not yet enacted it. However, the courts do not need Congress to enact a law; each circuit court can create whatever procedure each of them prefers. The important point is to make that procedure public. Right now, the procedure is not transparent. A federal circuit may decide that it will modify randomness in certain circumstances. If so, it need merely tell us what those circumstances are. In the meantime, we are left to wonder.