Federal Courts Move Against 'judge-shopping'

A litigation tactic that has helped fuel a series of conservative victories in cases ranging from abortion to immigration to gun rights suffered a setback Tuesday after the federal judiciary’s policymaking body said it will require federal courts to take steps to combat so-called judge-shopping.

The move is aimed at reining in a growing practice of lawyers and interest groups — and even states — trying to guarantee that the lawsuits they file wind up in front of a judge they expect to be friendly to their arguments.

Liberal critics have howled with outrage in recent years as cases seeking to knock a key abortion drug off the market, to challenge Biden administration immigration policies and to nullify gun-safety regulations have all been filed in federal judicial divisions where conservatives knew the case was certain or highly likely to be assigned to particular staunchly conservative judges.

Now, judges themselves have moved to crack down on that tactic by adopting a new policy that mandates that all federal suits aimed at invalidating a national policy or statute or a state law or executive order be randomly assigned among judges throughout the judicial district where the case is filed.

“I’m really proud that we did this,” 6th Circuit Chief Judge Jeffrey Sutton said of the action taken Tuesday by the Judicial Conference of the United States, which sets policies for the federal judiciary.

The change means that challenges to state or federal government policies or laws filed in any of the nation’s 94 federal judicial districts will be subject to random assignment among all judges accepting civil cases in those districts, rather than being retained in the particular geographic division where they are filed and assigned only to the judge or judges in that division.

Speaking with reporters by videoconference after a Judicial Conference meeting in Washington, Sutton called the new policy “an elegant solution” to a problem he said was fueled by an increasing number of nationwide injunctions — orders in which a single federal judge blocks a policy across the country.

Justice Department officials over the last three administrations have complained that bids to knock federal policies out nationwide put the federal government at a disadvantage because of the phenomenon of judge-shopping and because multiple litigants could file suits in different venues with a single victory putting the challenged policy on ice nationally.

“The current issue relates to nationwide injunctions or statewide injunctions,” said Sutton, an appointee of President George W. Bush. “So, when it comes to those claims, it's a little hard to say you need one division of one state to handle it since, by definition, it extends at a minimum throughout the state and possibly to the whole country.”

“The random case-assignment policy deters judge-shopping and the assignment of cases based on the perceived merits or abilities of a particular judge,” Judicial Conference secretary and District Court Judge Robert Conrad added in a statement announcing the change. “It promotes the impartiality of proceedings and bolsters public confidence in the federal Judiciary.”

The issue has drawn particular attention in Texas, where the state’s attorney general’s office and conservative activists have filed dozens of cases challenging Biden administration policies in divisions with few — or even just one — judge. One particular favorite of conservatives has been Judge Matthew Kacsmaryk, who sits in Amarillo, is the only judge in that division and was appointed by President Donald Trump.

Last April, Kacsmaryk — a former litigator for abortion-rights opponents — suspended the Food and Drug Administration’s approval of mifepristone, which is used for medication abortions. The action had the potential to knock the medicine off the market. An appeals court lifted part of that ruling, and the Supreme Court put the remainder on hold while it considers the case, set for argument March 26.

In 2021, Chief Justice John Roberts urged action to counter an effort to steer many of the country’s patent cases before a specific judge in Texas. Last year, Sen. Mazie Hirono (D-Hawaii) proposed legislation that would require challenges to national policies or federal laws be filed in Washington, D.C.

The Justice Department has sought changes of venue in some cases to protest what it considered unjustified moves to get cases before specific federal judges in Texas. A DOJ official also wrote to the Judicial Conference in December asking it to rein in judge-shopping.

Backers of so-called “single-judge divisions” have said they allow litigants to seek justice in or near their community, and that those interests are particularly acute in some large states like Texas. However, critics say recent cases have had tenuous connections to the places where they’re filed.

Liberal groups and Democratic officials in blue states also tried to seek favorable judges for their litigation against the Trump administration by often filing those cases in northern California or Brooklyn, where they were virtually certain to be assigned to appointees of Democratic presidents. However, taking that step could not typically guarantee a choice of a specific judge because those districts have larger numbers of judges in each division.

Sutton stressed that under the new policy individual litigants seeking relief solely for themselves could still ensure their cases are heard in a nearby courthouse. The judge also said videoconferencing has made it easier for lawyers and judges to conduct many sorts of proceedings remotely, lessening some of the impact of a case being assigned to a distant judge.

“Technology has changed some of the imperatives,” Sutton said.