US federal judiciary moves to curtail 'judge shopping' tactic

[March 13, 2024]  By Nate Raymond

(Reuters) -The U.S. federal judiciary on Tuesday adopted a new policy aimed at curtailing "judge shopping" by state attorneys general, activists and companies who file lawsuits challenging government policies in courthouses where one or two sympathetic judges had been virtually guaranteed to hear their cases.

The policy adopted by the U.S. Judicial Conference, the judiciary's policymaking body, followed calls by Democratic lawmakers and others for an end to a system used by conservatives to successfully block major elements of Democratic President Joe Biden's agenda in court.

Local court rules had allowed conservatives and others to target small courthouses in Texas, essentially enabling them to choose judges who have reliably issued rulings stymieing Biden's policies on issues like immigration, gun control and LGBTQ rights, to hear their lawsuits.

The new judicial policy would require lawsuits seeking to block state or federal laws to be assigned a judge randomly throughout a federal district and not be heard just by judges in a specific courthouse, or division, within the larger district.

U.S. Circuit Judge Jeffrey Sutton, the newly appointed chair of the Judicial Conference's executive committee, said the change was prompted by the "plethora of national, statewide injunctions" being issued by judges in such cases.

The chief judge of Texas' Southern District, Randy Crane, in a statement said the Judicial Conference's policy raised questions that need to be addressed before it could be implemented by courts. He said it also "seems to be a response to decisions adverse to certain political interests, given its timing."

Nationwide injunctions allow a single judge to block implementation of new rules across the entire country. Sutton said it "makes a lot of sense" to ensure cases seeking such injunctions be heard by a broader array of judges than the one or two within a specific courthouse.

Democratic Senate Majority Leader Chuck Schumer in a statement welcomed the Judicial Conference's decision to "update rules, level the playing field, and bring more justice back into the justice system by finally putting an end to unscrupulous plaintiffs having the ability to choose their judge."

'STRATEGIC CALCULUS'

Calls for the judiciary to crack down on the practice by the Biden administration, Democratic lawmakers, and the American Bar Association had come in response to mounting concern over lawsuits filed in single-judge divisions in Texas by Republican Attorney General Ken Paxton and other state attorneys general, conservative activists, and more recently companies and business groups, challenging government policies.

Sutton said the issue had existed for years. Democratic attorneys general during Republican former President Donald Trump's administration had likewise sought out favorable venues in states like California and Washington for their lawsuits seeking to block his policies.

A bronze statue titled "Justice Delayed, Justice Denied" depicting a figure of Justice is seen on the Albert V. Bryan United States Courthouse in Alexandria, Virginia, U.S., September 1, 2020. REUTERS/Andrew Kelly/FILE PHOTO

But Texas' federal courts have provided Republican activists with a unique advantage because its four districts are broken into 27 divisions, the smallest of which have just one or two judges tasked with hearing most cases filed there. The judges in many of those smaller federal courthouses in cities like Fort Worth, Amarillo or Lubbock are Republican appointees.

"The polarization of the federal bench has increased the friendliness of certain forums," Stephen Vladeck, a law professor at the University of Texas, told Reuters ahead of the policy change. "It has made the strategic calculus that much more decisive."

ABORTION PILL CASE

The tactic gained national attention after conservative litigants filed a lawsuit before U.S. District Judge Matthew Kacsmaryk in the single-judge division of Amarillo, seeking to suspend approval of the abortion pill mifepristone, which he ordered in April.

Kacsmaryk, an appointee of former Republican President Donald Trump, was previously a conservative Christian legal activist involved in anti-abortion causes. The U.S. Supreme Court has allowed the pill to remain on the market while it considers an appeal in the case, set for argument on March 26.

More recently, companies like Humana and SpaceX and trade groups had also made these courts their destination of choice for challenges to Biden administration policies or advocating a stance popular among Republicans.

A Reuters analysis identified at least 27 such lawsuits by companies and business groups since Biden took office that were filed in Texas' smaller federal courthouses.

At least 11 were filed in Fort Worth, according to research by the progressive group Accountable.US and reporting by Reuters, many of which were assigned to U.S. District Judge Reed O'Connor, who once declared the Affordable Care Act unconstitutional.

While many of those cases were in their early stages, some industry groups pursuing the strategy had already found success.

On Friday, U.S. District Judge J. Campbell Barker in Tyler, Texas, sided with the U.S. Chamber of Commerce in striking down a National Labor Relations Board rule that would treat many companies as employers of certain contract and franchise workers and require them to bargain with unions representing them.

Under a local order, Barker is one two Trump appointees assigned to hear all civil cases filed in Tyler.

(Reporting by Nate Raymond in BostonEditing by David Gregorio, Alexia Garamfalvi and Matthew Lewis)

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