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Federal courts make it harder to 'judge-shop' as was done in abortion pill case

The U.S. Judicial Conference acted after high-profile cases in which lawyers have effectively been able to pick judges.
Matthew Kacsmaryk
Matthew Kacsmaryk at his confirmation hearing to be a U.S district judge in 2017.Senate Judiciary Committee / AP file

WASHINGTON — When anti-abortion-rights activists drafted a lawsuit seeking to overturn federal approval of the abortion pill mifepristone, they filed it in a court in Texas where they were guaranteed a judge who they thought would be friendly to their point of view.

That judge, Amarillo-based Matthew Kacsmaryk, who was once a conservative legal activist and was appointed by former President Donald Trump, subsequently ruled in favor of the plaintiffs, prompting outcry and further litigation. The case is now before the Supreme Court.

The approach the lawyers at the Christian conservative Alliance Defending Freedom took in that case, known as "judge-shopping," will be harder to pull off after the federal judiciary changed policy Tuesday.

The U.S. Judicial Conference approved a new policy at its biannual meeting that would ensure that any cases seeking to block state or federal policies in federal district courts would be assigned randomly from larger pools of judges.

Senate Majority Leader Chuck Schumer, D-N.Y., who had complained about the issue, welcomed the move.

"The practice of judge shopping has given MAGA-right plaintiffs the ability to hijack and circumvent our federal judiciary by targeting courts that would all but guarantee a handpicked MAGA-right judge who would rule in their favor," he said in a statement.

Cases like the mifepristone challenge showed how lawyers could take advantage of anomalies in how judges in the 94 federal districts are assigned cases.

While cases are assigned randomly in each district, some districts have smaller subdivisions in which, in some instances, there is only one judge to choose from. The Amarillo division where Kacsmaryk sits in the Northern District of Texas is one example.

That lawyers can sometimes pick the judges of their choosing has long been a concern, dating to at least the 1990s, but the increase in nationwide injunctions that have been issued in recent years has renewed focus on the phenomenon.

Starting during the Obama administration and continuing through the Trump and Biden administrations, it has now become a regular occurrence for an individual district court judge to freeze a nationwide policy on issues from immigration to Covid-19 vaccination mandates.

During the Biden administration, many such cases have been filed in Texas.

The Justice Department declined to comment on the new policy.

The chair of the Judicial Conference’s executive committee, Jeffrey Sutton, a judge on the Cincinnati-based 6th U.S. Circuit Court of Appeals, told reporters there were originally good reasons for having single-judge divisions.

It means local judges could preside over local cases, he said.

But when a case is a challenge to a national or statewide policy, "the stakes of the case go beyond that small town or division," he said.

In that situation, "it makes a lot more sense" to randomly assign a judge from a larger pool, Sutton said.

The Judicial Conference said the policy "applies to cases involving state or federal laws, rules, regulations, policies, or executive branch orders."

Judges will receive guidance on how cases should be assigned, the conference said.

The policy would not prevent lawsuits from being filed in districts where the judicial approach of the judges as a whole tilts one way or another. For example, in the Northern District of Texas, most of the judges are Republican appointees, and their decisions are reviewed by the conservative-majority 5th U.S. Circuit Court of Appeals.