Column: Courts finally move to end right-wing judge shopping, but the damage may already be done
Some lawsuits are won by smart lawyers and some on the facts. But nothing spells success as much as the ability to pick your own judge.
That’s the lesson taught by conservative activists who have moved in federal courts to overturn government programs and policies on abortion, contraception, immigration, gun control, student loan relief and vaccine mandates, among other issues.
In recent years they’ve gamed the judicial system to get their lawsuits heard by judges they knew would be sure to see things their way. The process is known as judge shopping, and the committee that makes policy for the federal courts just moved to put an end to it.
The courts have now formally recognized the need to do something about a really troubling pattern of judge shopping.
— Amanda Shanor, University of Pennsylvania constitutional law expert
In a policy statement and official guidance issued last week, the Judicial Conference of the United States said that henceforth, any lawsuit seeking a statewide or nationwide injunction against a government policy or action should be assigned at random to a judge in the federal district where it’s filed.
If that sounds a bit vague to the layperson, its target is crystal clear to legal experts: It’s aimed at right-wing activists and politicians who have filed their cases in federal courthouses presided over by highly partisan judges in Texas. Most of those judges were appointed by Donald Trump.
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It would be bad enough if those judges’ rulings applied only within their judicial districts or affected only the plaintiffs. But the judges have issued sweeping nationwide injunctions that block government programs and policies coast-to-coast.
As Ian Millhiser of Vox put it, this is America’s “Matthew Kacsmaryk problem.” Kacsmaryk is the Trump-appointed Texas federal judge who most recently attempted to outlaw mifepristone, a widely used abortion medication, nationwide. His April 2023 ruling has been temporarily stayed by the Supreme Court, but it’s still on the docket, ticking away.
But Kacsmaryk is not alone. As recently as March 8, Judge J. Campbell Barker, a Trump appointee who presides over 50% of the civil cases filed in his rustic courthouse in Tyler, Texas, invalidated a ruling by the National Labor Relations Board broadening the standard by which big corporations could be held jointly responsible for the welfare and unionization rights of workers employed by their franchisees.
How serious a blow could the judicial conference’s policy be to conservatives aiming to roll back civil rights? Massive, judging from the reaction of Senate Minority Leader Mitch McConnell (R-Ky.). Only 48 hours after the conference announced its initiative, McConnell wrote to the chief judges of all judicial districts urging them to ignore the new policy.
Trump’s legacy rests not on his policies but on the right-wing judges he placed on the federal courts.
This was an audacious move, considering that the presiding officer of the Judicial Council is Chief Justice John G. Roberts Jr., its membership comprises the chief judges of the 12 judicial circuits and one judge from a district court in each circuit, and its role is to set policy for the entire federal court system.
McConnell asserted that only Congress can make the rules for the assignment of federal trial judges, but that’s dubious. In an analysis last year, the Justice Department concluded that the Supreme Court has full authority to impose rules of civil procedure in the federal courts, including a rule mandating that all federal judicial districts assign judges randomly to civil lawsuits aimed at statewide or nationwide injunctions. The Judicial Council’s policy isn’t the same as as a Supreme Court rule, but it’s a fair bet that if pushed, the court would issue the rule.
McConnell also asserted that the Judicial Conference had been pressured into acting by Senate Majority Leader Charles E. Schumer (D-N.Y.), but that’s untrue. Although Schumer has spoken out against judge shopping, numerous legal experts and Roberts himself have expressed concerns about the practice.
“The courts have now formally recognized the need to do something about a really troubling pattern of judge shopping,” Amanda Shanor, a constitutional law expert at the University of Pennsylvania, said of the Judicial Conference’s initiative.
What’s yet unclear is whether the conference’s initiative goes far enough. Its policy statement is described as “guidance,” not a mandate. it acknowledges the district courts’ “authority and discretion” to manage their dockets as they see fit.
Last year, Shanor, with Alice Clapman and Jennifer Ahearn of NYU’s Brennan Center for Justice, proposed that the conference require all judicial districts to use a “random or blind procedure” to distribute cases among all the judges in the district when the litigants seek an injunction or other relief that would extend beyond the district’s borders.
The practice traditionally labeled “forum shopping” is not especially new. The earliest case cited by legal experts dates back to 1842, when a litigant chose to file a lawsuit in federal rather than state court in New York to gain a strategic advantage over his adversary.
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Plaintiffs have been known to choose a venue based on local statutes of limitation, or a sense that juries in a region might be more amenable to their case, or because their location may be more convenient for parties or witnesses.
More recently, however, the practice has been heavily abused for partisan and ideological purposes. This results from two trends. One is the increasing partisanship of individual federal judges, especially those appointed by Trump. The second is those judges’ habit of issuing nationwide injunctions against government policies or programs.
Nationwide injunctions can impose parochial partisan ideologies on the whole country. Through 2023, the state of Texas filed more than 31 federal lawsuits challenging Biden administration policies — but not a single one in federal court in Austin, which is the state capital but an island of blue in a red state.
The state had filed seven lawsuits in Amarillo, where by local procedure every one was automatically assigned to Kacsmaryk; six in Victoria, where all civil cases are assigned to Trump appointee Drew B. Tipton; and four in Galveston, where all civil cases come before Trump appointee Jeff Brown.
The rest were filed in divisions with two judges, most of whom are also Trump appointees or conservative appointees of George W. Bush. In the Tyler division from which Barker issued his NLRB decision, all the cases he doesn’t get are assigned to Judge Jeremy Kernodle, also a Trump appointee.
Although some nationwide injunctions have been lifted by the Supreme Court, that process seldom happens speedily. The result is that the plaintiffs effectively win by losing, as injunctions against government policies can have “the lasting systemic effect of blocking these policies for months or years,” Shanor, Clapman and Ahearn observed.
Kacsmaryk got the mifepristone case for two reasons. First, antiabortion activists knew of his strong antiabortion inclinations. Second, the policy in the Northern District of Texas is to assign cases to judges in the division where they’re filed.
Two studies cited by a judge in a ruling restricting the abortion medication mifepristone were retracted. But they’re still being cited in an appeal to the Supreme Court.
Kacsmaryk is the only judge sitting in the Amarillo division of the Northern District of Texas. So it was an easy call for the mifepristone plaintiffs to file there, knowing that their chance of drawing Kacsmaryk as their judge was 100%.
The same pattern drove plaintiffs to file lawsuits against Biden administration initiatives in the same district’s Fort Worth division, which has two judges, Trump appointee Mark T. Pittman and George W. Bush appointee Reed O’Connor. Both have been sought by conservative litigants. O’Connor also presides over 100% of the cases filed in the district’s Wichita Falls courthouse, where he is the only judge.
Pittman obligingly overturned Biden’s student loan relief program in 2022. Just this month, he ruled the government’s 55-year-old Minority Business Development Agency to be unconstitutional and ordered it opened to contract applicants of all races — obviously a ruling that defeats the purpose of a program designed to help minorities get a start in the business world. O’Connor tried to declare the entire Affordable Care Act unconstitutional in 2018. The Supreme Court overruled him in 2021.
The judicial conference’s initiative is long overdue.
Customarily, rulings by federal trial judges have constituted precedents binding at most on other judges in a particular judicial district or resulted in court orders benefiting only the plaintiffs who filed the case.
Right-wing hacks on the 5th circuit federal appeals court, emboldening medical charlatans, questioned the FDA’s advice not to take ivermectin for COVID-19.
Matters are different “when a court effectively can bind the entire nation with an injunction” that applies to “an unlimited range of persons and to conduct occurring in ... an equally unlimited array of places,” legal scholar Ronald A. Cass wrote in 2018.
The prospect of sweeping rulings incentivizes “an extreme race to courthouses more inclined to issue nationwide injunctions and more sympathetic to the plaintiff’s position,” Cass wrote.
In its latest incarnation, “litigants effectively have the ability to effectively choose an actual judge,” Shanor told me.
“We don’t know how the policy will be rolled out, what exactly is in it, or how much of it is a recommendation rather than a requirement,” she says. “A policy may be effective, but having a rule would advance the fairness and randomness of the distribution of these nationally important cases, and ensure the perceived legitimacy of the courts.”
One is that the policy won’t apply to cases that have already been assigned to a judge. Another is that litigants can still try to game the system by filing their lawsuits in states from which appeals are heard by circuit courts known to have a particular partisan lean.
That’s a major issue with Texas cases, which are funneled on appeal to the 5th Circuit, sitting in New Orleans. That court has been the source of right-wing decisions so loopy that they’ve been slapped down by the conservative majority on the Supreme Court. Of that circuit’s 17 active judges, six are Trump appointees.
McConnell’s objection to the Judicial Conference’s policy thus should be seen in context. He had more to do than anyone else with embedding Trumpian judges in the federal judiciary, where they wreak havoc on government policies and programs that help ordinary Americans, not just corporations and the rich. The conference’s initiative may be the first step toward a more fair-minded judiciary, but it’s a crucial one.
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