Democrats Spitball Fixes To Judge Shopping While Right-Wing Actors ‘Game The System’

Sens. Mazie Hirono (D-HI), Chuck Schumer (D-NY) and Ron Wyden (D-OR). Getty images/TPM illustration.
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In a very short span of time, “judge shopping” went from a wonky, academic concern to one on the lips of many in the Democratic caucus. 

They’re referring, specifically, to the process by which right-wing litigants plant their cases in court divisions where they’re guaranteed to get their similarly right-wing judge of choice — usually in states like Texas, which are governed by the very conservative 5th Circuit Court of Appeals.

“It’s trying to game the system, it’s getting more prevalent,” Sen. Peter Welch (D-VT) told TPM. 

Senate Democrats are becoming increasingly fixated on the topic, especially while the judge-shopping pipeline keeps producing precedent-shaking rulings that often dictate government policy on issues from health care to immigration to abortion — if only until their decisions are later reversed. 

Change From Within 

Most recently, 19 senators signed off on a letter spearheaded by Senate Majority Leader Chuck Schumer (D-NY) this week urging the Judicial Conference to change how cases are distributed — putting a stop to the frequency with which anti-administration litigants are homing in on, especially, judges like Matthew Kacsmaryk and Reed O’Connor, nakedly partisan judges who get 100 percent of the cases filed in their divisions. 

The letter seeks answers on internal rule changes that would “guarantee variability in the assignment of cases to district judges.” 

This sort of non-legislative option is particularly attractive to Senate Democrats, hamstrung as they are by a Republican majority in the House.

“The quickest way to address it is through a rule change by the courts themselves,” Sen. Richard Blumenthal (D-CT) told TPM. 

And courts have changed their rules in response to gamesmanship before; when a judge in Waco, Texas was inviting patent holders to sue in his court and thus overseeing a massive number of them, the chief judge of the Western District of Texas changed the system to make sure patent cases were randomly assigned.

“The courts should do a better job but Congress should nail them down and make sure that they’re following tougher rules,” Sen. Elizabeth Warren (D-MA) told TPM. “The Senate could hold hearings. We can speak out on this, we can go to the floor.”

The Fair Courts Act 

Despite the seeming impossibility of passing legislation to address judge shopping given the partisan congressional split, some Democrats have introduced bills with crafty solutions to scuttle the pipeline’s current predictability.

Sen. Ron Wyden (D-OR), together with Rep. Deborah Ross (D-NC), introduced the Fair Courts Act in late May. It proposes an idea very popular with legal scholars concerned about the rapid uptick in judge shopping and gets at the heart of the damage done by judges like Kacsmaryk and O’Connor. 

Both of them, and other judges of their ilk, make liberal use of nationwide injunctions, rulings that block government actions not just for the parties that brought the case, but for the entire country. Given the time it can take for higher courts to reverse lower court rulings (if they ultimately do), those nationwide blocks can stay in place for months or years. 

The Fair Courts Act would prohibit a district judge from granting nationwide relief unless the case went before a three judge panel with at least one circuit court judge. The panel’s decision would be directly appealable to the Supreme Court. 

This panel system used to be normal operating procedure. These courts were created in 1910 for cases where people were seeking to enjoin enforcement of state laws (and, by 1937, federal laws) on federal constitutional grounds. That system was ended in 1976 except for redistricting cases, which still go through this process. 

The bill would also ensure that most civil cases are assigned within a district so that no judge has more than a 25 percent chance of getting the assignment (a direct response to the monopolies of Kacsmaryk and O’Connor). It would also require district court orders about the division of cases to be publicly posted on the district’s website. 

Wyden and Ross were spurred to action after Kacsmaryk ruled to revoke the Food and Drug Administration’s over 20-year-old authorization of mifepristone, a drug that induces abortions.

“The congresswoman and I decided that we needed another way to ensure that there were gonna be objective decisions,” Wyden told TPM. “I was struck by the initial court approach where they didn’t even really go through the motions of pretending there was standing. That’s why we did it — just to have more fairness in the way the court was gonna handle it.” 

The Stop Judge Shopping Act 

Sen. Mazie Hirono (D-HI) was similarly pushed to act by Kacsmaryk’s mifepristone ruling, though her fix would take a different tack. 

It would route all cases seeking declaratory or injunctive relief against the enforcement of any federal laws, agency regulations or executive orders beyond the named parties to the United States District Court for the District of Columbia. 

Of the D.C. district judges, six plus the chief are Barack Obama’s appointees, four are Donald Trump’s and two are Joe Biden’s. 

While these bills and other legislative fixes will likely languish until Democrats again control both chambers, the lawmakers told TPM that “acknowledging the serious problem that judge shopping has become,” as Welch put it — whether by introducing bills or pressuring the courts to reform themselves — is something they can do right now to build momentum for when the right moment arises. 

“You keep your eyes open for all the opportunities,” Wyden said.

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Notable Replies

  1. We are starting to see the true meaning of the term “Judge Shopping” these days. I wonder if Judge Kacsmaryk likes salmon fishing?

  2. Forum shopping has been going on for a long time. The difference is the Republican party has politically weaponized a process that has been employed by savvy lawyers since Hector was a pup.

    Just keep in mind that nobody in the Federalist Society is smart enough to come up with an original idea. I would look to Mitch McConnel and his efforts to appoint inexperienced and stupid judges because they are easily manipulated, and John Roberts and the way he has allowed circuits and districts to evolve. As well as the entire Supreme Court for allowing District Judges the authority to announce immediate nationwide orders unsupervised.

    The last item might suggest a solution but very occasionally a district judge does have to deal with a national emergency quickly.

  3. I prefer Hirono’s approach. There are tons of districts and a bunch of circuit courts that are overwhelmingly FedSoc. Wyden’s approach just pushes cases into those districts instead of single-judge divisions. It makes the math a little less disfavorable, but not much else. D.C. doesn’t have any senators with blue slips, so the nominees all get hearings and a good amount of scrutiny. And I would add one thing: Make all the cases seeking injunctive relief beyond the immediate parties be decided by a three-judge panel, lest any one judge be Trevor McFadden.

  4. Avatar for gr gr says:

    While these bills and other legislative fixes will likely languish until Democrats again

    Now I understand why Kate called this a “spitball” approach.
    We Dems have been getting used like chumps now for decades.
    The nation is paying dearly for it.

  5. Same thing with the media Josh characterized. Polemics and hyperbole over what the other side is doing as a way of justifying their own extremism and jettisoning any moral boundaries over an issue.

    That, and they’re just fucking nuts.

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