Some lawsuits are won by smart lawyers and others are won on the facts. But nothing signifies success as much as the ability to choose your own judge.
That's the lesson learned by conservative activists who have moved in federal courts to strike down government programs and policies on abortion, contraception, immigration, gun control, student loan relief, and vaccine mandates, among other issues.
In recent years, they manipulated the judicial system so that their lawsuits would be heard by judges they knew would see things their way. This process is known as “judge shopping,” and the commission that sets policy for the federal courts has just moved to put an end to the process.
The courts have now formally recognized the need to do something about this truly troubling pattern of judge trade-offs.
—Amanda Shanor, a constitutional law expert at the University of Pennsylvania
In a formal policy statement and guidance issued last week, the Judicial Conference of the United States said that from now on, any lawsuit seeking a statewide or nationwide injunction against a government policy or action must be randomly assigned to a judge in the federal district. Where it is done. foot.
If this sounds a little vague to the layman, its goal is quite clear to legal experts: It targets right-wing activists and politicians who have brought their cases in federal courts presided over by highly partisan judges in Texas. Most of these judges were appointed by Donald Trump.
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It would be bad enough if these judges' rulings applied only within their jurisdictions or affected only plaintiffs. But judges issued sweeping nationwide injunctions blocking government programs and policies from coast to coast.
As Fox's Ian Millheiser put it, this is America's “Matthew Kasmarek problem.” Kaczmarek is the Trump-appointed federal judge in Texas who recently tried to ban mifepristone, a widely used abortion drug, across the country. His April 2023 ruling was temporarily stayed by the Supreme Court, but it remains on the docket.
But Kaczmarek is not alone. On March 8, Judge J. Campbell Parker, a Trump appointee who presides over more than 50% of the civil cases filed in his rural court in Tyler, Texas, approved a ruling by the National Labor Relations Board expanding the standards by which big corporations can be held jointly liable for welfare rights. And the union of workers working for franchisees.
How serious a blow could judicial conference policy deal to conservatives seeking to roll back civil rights? Huge, judging by the reaction of Senate Minority Leader Mitch McConnell (R-Ky.). Just 48 hours after the conference announced its initiative, McConnell wrote to the chief justices of all judicial districts urging them to ignore the new policy.
This was a bold move, considering that the head of the Judicial Council was Chief Justice John J. Roberts Jr., whose membership includes the chief judges of the 12 judicial circuits and one district court judge in each circuit, and whose role is to set policy for the entire federal court system.
McConnell emphasized that only Congress can set the rules for appointing federal trial judges, but this is questionable. In an analysis last year, the Justice Department concluded that the Supreme Court has full authority to enforce rules of civil procedure in federal courts, including a rule requiring that all federal judicial districts randomly assign judges to civil suits targeting state or federal injunctions. Country level. The Judicial Council's policy is not the same as the Supreme Court's ruling, but it is a fair bet that if the push is made, the court will render judgment.
McConnell also asserted that the Judiciary Conference was pressured by Senate Majority Leader Charles E. Schumer (D.N.Y.), but this is not true. Although Schumer has spoken out against judge shopping, many legal experts and Roberts himself have expressed concerns about the practice.
“The courts have now formally recognized the need to do something about the really troubling pattern in the selection of judges,” Amanda Shanor, a constitutional law expert at the University of Pennsylvania, said of the Judicial Conference Initiative.
What is not yet clear is whether the conference initiative will go far enough or not. Its policy statement is described as a “guidance” rather than a mandate. It recognizes the “power and discretion” of district courts to manage their files as they see fit.
Last year, Shanor, along with Alice Klapman and Jennifer Ahern of New York University'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 judges in the district when litigants seek resolution. An injunction or other remedy would extend beyond the borders of the region.
The practice traditionally called “forum shopping” is not particularly new. The oldest 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 opponent.
Prosecutors have been known to choose a location based on local statutes of limitations, a feeling that a jury in the area may be more responsive to their case, or because their location may be more convenient for parties or witnesses.
But recently, this practice has been greatly abused for partisan and ideological purposes. This results from two trends. The first is increasing partisanship among individual federal judges, especially those appointed by Trump. The second is the habit of these judges to issue nationwide injunctions against government policies or programs.
State-level injunctions can impose narrow-minded partisan ideologies on the entire country. Through 2023, Texas has filed more than 31 federal lawsuits challenging Biden administration policies — but not a single lawsuit in federal court in Austin, the state capital but a blue island in a red state.
The state filed seven lawsuits in Amarillo, each of which was automatically assigned to Kaczmarek under local procedures; six in Victoria, where all civil cases are assigned to Trump appointee Drew P. Tipton; and four in Galveston, where all civil cases are brought before Trump appointee Jeff Brown.
The rest were served in divisions with two justices, most of whom were also Trump appointees or conservative appointees of George W. Bush. In the Tyler division from which Parker issued his NLRB decision, all the cases he didn't get are assigned to Judge Jeremy Kernodle, also a Trump appointee.
Although the Supreme Court has struck down some nationwide injunctions, the process rarely happens quickly. The result is that plaintiffs effectively win by losing, because injunctions against government policies can have “the lasting systemic effect of blocking those policies for months or years,” as Shanor, Klapman, and Ahern note.
Kaczmarek got the mifepristone case for two reasons. First, anti-abortion activists were known for his strong anti-abortion leanings. Second, the policy in the Northern District of Texas is to assign cases to judges in the division in which the cases are filed.
Kacsmaryk is the only judge sitting in the Amarillo Division of the Northern District of Texas. So it was easy for the mifepristone plaintiffs to file suit there, knowing that their chance of appointing Kaczmarek as their judge was 100%.
The same pattern has prompted plaintiffs to file lawsuits against Biden administration initiatives in the same district's Fort Worth division, which includes two judges, Trump appointee Mark T. Pittman and George W. Bush appointee Reed O'Connor. Both are required by conservative litigants. O'Connor also presides over more than 100% of the cases filed in the Wichita Falls District Court, where he is the sole judge.
Pittman repealed Biden's student loan relief program in 2022. Just this month, he ruled the state's 55-year-old Minority Business Development Agency unconstitutional and ordered it open to contract applicants of all races — a ruling that clearly contradicts the purpose of a program designed to help… Minorities getting started in the business world. O'Connor tried to have the entire Affordable Care Act declared unconstitutional in 2018. The Supreme Court overturned his decision in 2021.
The Judicial Conference initiative is long overdue.
Rulings by federal trial judges typically set precedents that are at most binding on other judges in a particular jurisdiction or result in court orders that benefit only the plaintiffs who brought the case.
Things are different “when a court can effectively bind the entire nation by injunction” that applies to “an unlimited group of people and to conduct occurring in…an equally unlimited group of places,” wrote legal scholar Ronald A. Cup in 2018.
The prospect of sweeping rulings prompts “an intense race to courts more inclined to issue nationwide injunctions and more sympathetic to the plaintiff’s position,” Cass wrote.
In its latest incarnation, “litigants actually have the ability to effectively choose an actual judge,” Shanor told me.
“We don’t know how this policy will be implemented, what exactly it will contain, or how much of it is a recommendation rather than a requirement,” she says. “Politics may be effective, but the existence of a rule would promote fairness and randomness in the distribution of these important cases at the national level, and ensure the perceived legitimacy of the courts.”
The first is that the policy will not apply to cases that have already been assigned to a judge. Another reason is that litigants can still try to game the system by filing their lawsuits in states where appeals are heard by circuit courts known for their specific partisan leaning.
This is a major problem in Texas cases, which on appeal are transferred to the Fifth Circuit, based in New Orleans. That court has been the source of right-wing decisions so crazy that they have been rejected by the Supreme Court's conservative majority. Of the 17 judges serving in that circuit, there are six Trump appointees.
McConnell's objection to the Judicial Conference policy should therefore be viewed in context. And he has had to do more than anyone else to integrate Trump's judges into the federal judiciary, where they wreak havoc on government policies and programs that help ordinary Americans, not just corporations and the wealthy. The conference initiative may be a first step toward a fairer judicial system, but it is a critical step.
