A federal appeals court judge worried that potential efforts by the judiciary to craft a binding rule curbing judge-shopping could infringe on separation of powers and end up “backfiring.”

The Judicial Conference’s advisory committee on civil rules on Thursday considered to what extent trial courts have implemented recent guidance encouraging them to randomly assign cases seeking to block state or national policies to any judges within the district.

The nonbinding guidance issued in March aims to prevent litigants from filing in one- or two-judge divisions that allow them to effectively choose their preferred judge. But some courts haven’t changed their assignment practices, and the committee is examining if it has the authority to require the change.

Advisory committee member Judge Marvin Quattlebaum, Jr. of the US Court of Appeals for the Fourth Circuit described the issue as “volatile” and encouraged the committee to be “very careful” in its approach.

It’s a “legitimate question” if a move toward a binding rule would present a separation of powers issue, he said, echoing concerns by Senate Republicans that only Congress can enact those changes.

“What is permitted by statute, in terms of districts and divisions, and is there anything we’re doing that is contrary to that? I don’t know that there is, but that comes to mind,” Quattlebaum said.

While judge-shopping has most recently been on display from conservative litigants hoping to block Biden administration policies, Quattlebaum noted that the strategy is seen across administrations and is a common practice by lawyers in various contexts.

“I get the concern about the respect for the judiciary. Believe me, I hear that all of the time. But I think that there’s a little bit of a risk of that backfiring and appearing as if it’s about one type of recent activity,” he said.

US District Judge Robin Rosenberg, who chairs the civil rules panel, said they’re continuing to monitor how trial courts are approaching the recent guidance and described the committee’s process as still in the “early stages.”

“As you can see, we’re not fast,” Rosenberg said. “We stop, pause, think, monitor.”

The US District Court for the Northern District of Texas has come under particular scrutiny as a destination for conservative litigants challenging Biden policies, such as the administration’s student loan forgiveness plan and border initiatives. That’s because of the district’s one or two-judge divisions that allow challengers to effectively choose the judge to hear their case.

However, Northern District Chief Judge Dabvid Godbey, also a member of the rules committee, has declined to change his court’s assignment procedures following the guidance.

At the committee’s last meeting in April, judiciary officials indicated the panel was still weighing if it has the authority to issue a formal rule requiring courts to change assignment procedures and continuing to monitor how the guidance has been implemented.

According to committee materials posted ahead of Thursday’s meeting, district courts in Virginia, Kentucky, Indiana, Florida and Pennsylvania have adopted the guidance, though many districts with single-judge divisions haven’t changed their assignment procedures.

Senate Republicans have pushed back against the prospect of a binding case assignment policy, arguing such changes are up to Congress.

Senate Minority Leader Mitch McConnell of Kentucky wrote an opinion piece in the National Review on Wednesday calling on “judicial bureaucrats” to “stop interfering with how Congress wants cases assigned in district courts.”