Congress wants to curtail ‘judge shopping.’ Can it act before the election?

[RAY BOGAN]

There are two competing bills in the Senate to curtail “judge shopping,” or efforts by plaintiffs to file lawsuits with judges who are likely to rule in their favor. Democrats and Republicans both want to address the practice, but view the root of the problem differently and therefore presented differing solutions. 

If an organization or individual wants to challenge a new law or agency regulation, they can file a lawsuit in federal district court. Their attorneys will first research judges around the country to see which one may be most likely to rule in their favor based on previous cases. The plaintiffs then file in that judge’s district, within their division, so there’s a strong chance that judge will hear the case. 

[BLUMENTHAL]

“I think it should shock the conscience of Americans that people can, in effect, choose justice by shopping for judges and do injustice by simply picking their judges according to what’s best for their individual causes,” Sen. Richard Blumenthal, D-Conn., said. 

[RAY BOGAN]

The Republican bill would put new limits on judge shopping in all cases and has added parameters for bankruptcy and patent cases. But it also bans what Republicans see as another problem – nationwide injunctions. The bill limits injunctive relief to the parties involved or people in a similar position within that district.

[McConnell]

“Now that nationwide injunctions are being used against the Biden administration, liberal allies in the academy and in the media have started to target single judge divisions where they think conservative plaintiffs are likely to get favorable ratings from sympathetic judges,” Sen. Mitch McConnell, R-Ky., said in March. 

[RAY BOGAN]

The Democratic bill is two pages and states: “Any civil action brought…to challenge the constitutionality or lawfulness of… any provision of a Federal law on a nationwide basis, or any provision of a State law on a statewide basis… shall be randomly assigned to a judge of the district court in which the civil action is filed.’’ 

The Democratic bill would codify a rule the Judicial Conference created in March. The federal courts’ national policy making body said in cases involving civil actions meant to bar or mandate state or federal action, judges would be assigned through a district-wide random selection process.

Sen. McConnell called the rule “half baked” and wrote letters to chief judges in districts around the country informing them that it is Congress that decides how cases should be assigned, not the judicial conference. Sen. Schumer also wrote letters, instead urging the Judicial Conference to stand by their rule. 

[DURBIN]

“People like to feel that justice is fair and justice is blind,” Sen. Dick Durbin, D-Ill., told SAN. “But if you have one judge who is developing a national reputation for being the go-to judge on a given political issue, it’s pretty obvious that this system of justice is broken.”

[RAY BOGAN]

One of the most recent and well known examples of judge shopping came in the challenge to the FDA’s approval of the abortion pill, Mifepristone. That case was filed in the Northern District of Texas at the Amarillo division, even though the organization that filed the case, the Alliance for Hippocratic Medicine, is based in Tennessee. The only judge in that office is Mathew Kacsmaryk, who previously worked for the conservative First Liberty Institute and challenged the Affordable Care Act’s contraception mandate. 

Many instances of judge shopping aren’t political. Judge Alan Albright based in Waco, Texas is the busiest patent judge in the country. In 2020, the Western District of Texas heard 22% of the patent cases filed nationwide, of which Albright heard nearly all. 

According to Temple’s Business Law Magazine, cases are filed with Albright because he has a fast track scheduling order that’s advantageous to patentees and he had up until that point never invalidated a patent on eligibility grounds. 

Although there’s bipartisan agreement that something should be done to end judge shopping, one of the sponsors of the Republican led bill has serious doubts about getting something done this late in an election year. 

[Tillis]

“I’m very skeptical about any big stuff getting done for the rest of this Congress. If they’ve got a consensus bill, I’ll take a look at it. But there’s a you know, there’s a lot of activity, but there’s not a lot of productivity going on right now that I can see,” Sen. Thom Tillis, R-N.C., said.