CNN
—
A Democratic senator introduced what appears to be first-of-its-kind legislation aimed at so-called “judge-shopping,” a tactic used by litigants from all sides of the political spectrum to secure sweeping court orders blocking national policies by steering cases to judges perceived to be sympathetic to their causes.
Under the bill unveiled Wednesday by Sen. Mazie Hirono, a Hawaii Democrat who sits on the Senate Judiciary Committee, the US District Court in Washington, DC, would have the exclusive authority to hear civil lawsuits seeking court orders with nationwide force – including orders known as nationwide injunctions – that go beyond affecting the parties in a case.
“When parties are able to choose their judges, it creates the perception that they are able to predetermine their case’s outcome, compromising the integrity of our federal justice system,” Hirono said in a statement. “Activist plaintiffs should not be able to hand-select individual judges to set nationwide policy, which is why it’s critical we address the issue of judge shopping in our federal courts.”
The bill would preserve the ability of a party, if they were seeking a court order that would only cover themselves, to file their case in their local federal court.
Ten of the 14 active judges on DC’s federal court are Democrat appointees. Democratic appointees make up of six of the 10 active judges on the DC circuit.
Given the current Republican control of the House and the bevy of other judiciary-related matters Democratic lawmakers have spearheaded, it’s unclear what traction Hirono’s bill will get in this Congress.
But the introduction of the bill elevates an issue that has frustrated court reform advocates and the Biden administration alike. The Justice Department has not had any success so far in its efforts to push back in court against the practice, which has been embraced especially in lawsuits brought by Texas and other Republican-led states. Chief Justice John Roberts has in the past called for a review of forum-shopping that happens in patent cases, but that review has only focused on the patent context.
The strategy of forum-shopping has been used by liberals and conservatives alike. During former President Donald Trump’s administration, opponents of his policies would often file their legal challenges in federal courts in California and other parts of the country where the district courts and appeals courts are dominated by Democratic appointees.
However, the lawsuits brought by conservatives against President Joe Biden’s agenda have taken the tactic to a new level. Many of the cases have been targeted at district court divisions where a single judge hears all or most of the lawsuits that are filed there.
The most prominent recent example was the lawsuit brought by anti-abortion doctors who are seeking the suspension of the US Food and Drug Administration’s approval of a medication abortion drug.
They filed their case in Amarillo, Texas, where every case is heard by US District Judge Matthew Kacsmaryk, a Trump appointee who has a record of opposing abortion and advocating for other causes on the religious right before joining the federal bench. Kacsmaryk issued the nationwide ruling the plaintiffs were seeking that would have halted the drug’s approval, but the Supreme Court put the ruling on hold last week before it could take effect.
(Though one of the medical associations that brought the case was only incorporated in Amarillo a few months before the lawsuit was filed, the lawyer for the plaintiffs denied to CNN that they had engaged in judge shopping.)
Kacsmaryk’s courthouse has also been the site of several lawsuits against the Biden administration filed brought by Texas and other GOP states, including a challenge to Biden’s rescission of the Trump-era “Remain in Mexico” policy. The Supreme Court ultimately disagreed with Kacsmaryk’s nationwide order commanding that the Biden administration continue to implement the program, which sends certain non-Mexican citizens who entered the US back to Mexico while their asylum proceedings play out,
Supreme Court Justice Elena Kagan referenced Texas’ habit of filing cases in single-judge district courts during oral arguments in a separate immigration case brought by Texas. That challenge, to the administration’s deportation priorities, was filed in Victoria, Texas, where all civil cases are typically assigned to US District Judge Drew Tipton, a Trump appointee.
As Kagan grilled a lawyer for Texas about whether the immigration policy was inflicting the kind of harm on the state that warranted judicial intervention, she added, “in Texas, there are divisions within districts. You can pick your trial court judge.”
“You know, you play by the rules, that’s fine, but you pick your trial court judge,” Kagan said. The high court has not yet decided the case.
The Justice Department has called out Texas’ strategy with filings seeking to transfer lawsuits filed in single-judge courthouses to divisions where the judge who’d hear the case would be randomly selected from a larger pool of jurists.
Tipton rejected such a request in Texas-backed lawsuit against another Biden immigration policy, as did Kacsmaryk, when he was considering a similar DOJ motion in a Texas case against a Labor Department regulation for investors.
In a challenge Texas brought to the annual government appropriations bill that Biden signed last year, US District Judge James Wesley Hendrix – who hears two-thirds of lawsuits filed in Lubbock, Texas – is still considering a DOJ bid to move the case to either the federal court in DC or in Austin.
