Big legal news occurred recently that did not receive the widespread coverage that I thought it deserved. One of the quirks of the legal system in the US is that it is possible for a federal judge in one local jurisdiction to make rulings that apply nationwide. Furthermore, in some instances, a case can be filed in a any jurisdiction. This has resulted in what has come to be known as ‘judge shopping’, where people look around to see if they can find a judge who will be sympathetic to their case and file their case in that jurisdiction.

One safeguard against abuse of the system is that there are 94 federal districts in the country with multiple judges in each and when a case is filed in them, it is assigned randomly to a judge in that district, so you are not guaranteed to get the judge you want. But in the case of Texas (of course!), each district is split up into smaller divisions and in some divisions there is only one judge, so that any case filed in that division will be sure to be heard by that judge.

Enter Matthew Kacsmaryk. He is is the only federal trial judge in Amarillo, Texas. Any case filed in Amarillo automatically goes before him. He is a Trump appointee who is an advocate of the Christian right and makes no bones about ruling in the most extreme way in favor of his ideology. He has been the go-to judge for anti-abortion advocates and other rightwing zealots.

It didn’t take long for lawyers representing Republican causes generally, and the religious right in particular, to figure this out. Kacsmaryk’s courtroom became a magnet for lawsuits attacking federal policies, and he proved to be a rubber stamp for nearly any court order that a conservative litigant asked him to issue.

Among other things, he attempted to ban the abortion drug mifepristone (a decision blocked by the Supreme Court) and ruled that a father had a constitutional right to limit his daughters’ access to birth control. He attempted to neutralize a federal law prohibiting health providers from discriminating against LGBTQ patients, and he’s currently presiding over a trial brought by anti-abortion activists seeking up to $1.8 billion from Planned Parenthood based on frivolous claims that the organization defrauded Medicaid.

The mifepristone case is now before the US Supreme Court and oral arguments will be heard later this month.

Kacsmaryk’s courtroom is not the only place where this kind judge shopping happens.

[T]here are a number of famous examples of this happening. Many of them involve Matthew Kacsmaryk. And then there’s some other cases – like, there’s a judge named Drew Tipton in South Texas who’s known for having very right-wing views on immigration, and so a lot of immigration cases wind up in his courtroom.

But now the judicial body that sets the rules about where cases are heard has instituted a new rule that will greatly hinder this kind of highly targeted judge shopping.

Plaintiffs hoping to reshape federal or state policies will no longer be allowed to choose which judge will hear their case, at least in federal court. A new policy announced Tuesday by the Judicial Conference of the United States, a government body that sets policy for federal courts, targets rules in some federal courts that the conference said “risked creating an appearance of ‘judge shopping.’”
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According to the Judicial Conference, the new policy concerns “all civil actions that seek to bar or mandate state or federal actions.” It does not apply to all lawsuits, but it does apply to any in which the plaintiff seeks either a “declaratory judgment” saying that a federal or state policy is invalid or “any form of injunctive relief” changing such a policy.

In these cases, “judges would be assigned through a district-wide random selection process.” So, a case seeking to block a federal policy that is filed in Amarillo would be randomly assigned to one of the 11 active judges or one of the six senior judges who sit in that district. It would not be automatically assigned to Kacsmaryk.

A spokesperson for the Judicial Conference of the United States confirmed via email that this new policy applies “to all 94 US district courts.”

The good thing about this policy was that it was made by the judicial body that controls this policy, not by politicians.

“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.
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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.”

Of course Republican politicians are upset over this change because their policies are generally unpopular and they have long depended on having the courts do their dirty work for them.

Senate Minority Leader Mitch McConnell, R-Ky., criticized the new policy, calling it “half-baked ‘guidance’ that just does Washington Democrats’ bidding,” according to NBC News.

McConnell and other Republicans have urged judges nationwide to resist the policy, claiming it will “shut down access to justice in the venues favored by conservatives.”

Texas has long been the site of numerous “judge-shopping” incidents, where cases challenging the Biden administration’s federal policies were brought to sympathetic judges. The attempt to remove the abortion drug mifepristone from shelves was purposely seen in the town of Amarillo, where Judge Matthew Kacsmaryk, a conservative Trump-era appointee, was almost guaranteed to preside. The Supreme Court will consider the removal later this month.

Democrats also utilized “judge-shopping” during the Trump administration in New York and California, but the judge selection wasn’t as sure-fire as similar efforts in places such as Texas due to the districts being much larger with more available judges. 

What is astonishing to me is that a policy that allowed such judge shopping ever existed. I suspect that it was because the system wasn’t that brazenly exploited before because of norms that people followed. But in the era of Trump, when Republican policies are not popular with voters, all norms have been ditched in favor of bare-knuckled exploitation of whatever means were at hand that would give them what they wanted, thus exposing the weaknesses in the system.