Dems Are Furious About A Conservative Trick To Game The Courts. Is There A Path To A Legislative Fix?

WASHINGTON, DC - MARCH 15: Sen. Mazie Hirono (D-HI) talks with reporters as she boards an elevator following the weekly Democratic Senate policy luncheon at the U.S. Capitol on March 15, 2023 in Washington, DC. (Phot... WASHINGTON, DC - MARCH 15: Sen. Mazie Hirono (D-HI) talks with reporters as she boards an elevator following the weekly Democratic Senate policy luncheon at the U.S. Capitol on March 15, 2023 in Washington, DC. (Photo by Chip Somodevilla/Getty Images) MORE LESS
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Democrats are more likely than ever to harshly criticize judge shopping, the practice where almost exclusively right-wing litigants seek out court divisions with one or two Donald Trump appointees who they can count on for a favorable decision. 

Many of those dependable judges are based in Texas and governed by the ultra-conservative 5th Circuit Court of Appeals, making the dice roll even more predictable. 

Critiques of the trend were once largely the purview of legal scholars, but it has increasingly caught the attention of the less legally wonky as it’s yielded high-profile conservative legal victories, particularly on abortion. U.S. District Judge Matthew Kacsmaryk’s mifepristone ruling — and attendant attempts to keep protesters and press away from the proceedings — helped direct attention and anger to this gaming of the system.

It was enough to prompt one lawmaker, Sen. Mazie Hirono (D-HI) who sits on the Senate Judiciary Committee, to introduce a bill to curb the practice, she told TPM. The “Stop Judge Shopping Act” would give the Washington D.C. district court exclusive jurisdiction over any suit seeking a nationwide injunction, or similar relief, against the enforcement of a federal law if that relief extends beyond the parties on the suit. 

This is meant to drive at the heart of why judge shopping is so effective: The right-wing litigants often seek nationwide injunctions of federal laws or government actions, giving one district judge the enormous power to hand down a ruling that binds the entire country. Conservative organizations have increasingly sought to exploit this strategy on such topics as immigration and health care, along with abortion. Kacsmaryk’s mifepristone decision, for example, would have nixed the Food and Drug Administration’s approval of the drug not just in Texas, but everywhere.

But such a fix, even at a time when various aspects of judicial system rot are top of mind for Democratic lawmakers, has not exactly rallied the troops.

“I don’t know about the caucus, but I think that there’s interest among certain members of the caucus,” Hirono said when TPM asked if her recently unveiled bill was something in which Democratic senators were showing interest. 

She then pivoted to an extra-legislative fix, that the chief judge of the Northern Division of the Texas district courts could actually address some of the factors that encourage judge shopping himself, since “you have 20 of the 27 divisions in the Texas courts with a single judge.” 

Some of her colleagues expressed enthusiasm for her legislation. 

“I’m very interested in Senator Hirono’s bill because she’s put her finger on a serious problem,” Sen. Elizabeth Warren (D-MA) told TPM. “Judge shopping distorts our system of justice.” 

Others, including her peers on the Senate Judiciary Committee Sens. Jon Ossoff (D-GA) and Alex Padilla (D-CA), told TPM they hadn’t yet looked at the bill.

Most at least liked the general idea, though they hadn’t seen the specific legislation. 

“The judge shopping that just happened is obviously an egregious abuse, so we’ve gotta do something,” Sen. Peter Welch (D-VT) told TPM. “It’s bizarre this one judge in Texas takes away access to a drug that’s been approved by the FDA for 23 years. It’s a huge abuse — it makes a lot of sense to try to address that.” 

Sen. Sheldon Whitehouse (D-RI) said that it “sounds like a good idea.” 

“It’s well within our rights to establish venue and jurisdiction over certain things in certain courts and bring some regularity to that process, I think it’s helpful particularly when you have these other bizarre Trump judges perched in district divisions in Texas so everybody knows that they get that judge if they file in that division,” he told TPM.

Some of the vagueness, even among these judicially focused lawmakers, comes down to legislative reality. A Republican House is unlikely to pass any bill championed by Senate Democrats, particularly one that would interrupt such a pleasant string of conservative legal victories. 

There also seems to be some discomfort involved with the question of when and how Congress can best assert a check on the judicial system, as evidenced by Tuesday’s Senate Judiciary Committee hearing on Supreme Court ethics. While Republicans bemoaned the supposedly shabby treatment of right-wing justices ever since Justice Clarence Thomas’ confirmation hearing in 1991, Democrats mostly focused on the fact that the other tiers of the judicial system do have ethics agreements. 

Underlying the hearing was the reality that chair Dick Durbin (D-IL) had requested the presence of Chief Justice John Roberts, or another Supreme Court justice of his choosing, and been flatly rejected. But anger over the snub was thin on the ground. Only Sen. Richard Blumenthal (D-CT) seemed to get riled up as he mentioned it. 

“What Chief Justice John Roberts has done by refusing to come before this committee is judicial malpractice,” he said. 

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