Federal Courts Crack Down On Legal Strategy That Has Given Trump Judges Massive Power

The Judicial Conference, the policymaking body for federal courts, announced Tuesday that it would take action against the judge-shopping that has let right-wing litigants funnel cases to friendly, often Donald Trump-appointed judges. 

“The policy addresses all civil actions that seek to bar or mandate state or federal actions, ‘whether by declaratory judgment and/or any form of injunctive relief,’” the conference said in a press release. “In such cases, judges would be assigned through a district-wide random selection process.”

It will apply to “cases involving state or federal laws, rules, regulations, policies, or executive branch orders.”

For the past few years, those who want to challenge Biden administration policies have often sought out divisions with one or two ideologically-aligned judges, all but guaranteeing their desired outcome. Judge Matthew Kacsmaryk in Amarillo, most infamous for his ruling against the abortion drug mifepristone, has become the poster boy for this practice. 

Kacsmaryk and his ilk have worsened the problem with their willingness to hand down nationwide relief, rather than narrowing it to the plaintiffs before them. This dynamic vests one district judge with enormous power to dictate federal authority, shutting down policies irksome to right-wing plaintiffs as the cases work their way through the courts.

For experts who have been pounding the alarm on judge-shopping, Tuesday’s announcement came as a welcome surprise. 

“I’m absolutely delighted that courts have recognized the importance of this issue,” Amanda Shanor, assistant professor of legal studies and business ethics at the the Wharton School of the University of Pennsylvania, told TPM. “They appear to have adopted a policy that will address some of the major, most egregious and troublesome forms of judge shopping.”

But even evangelists of judge-shopping reform had some reservations about the press release, which did not link to any policy text and was devoid of details, including about how it would be enforced. 

The Judicial Conference did not immediately respond to TPM’s questions about policy text. Judge Jeffrey Sutton, Chief Judge of the Sixth Circuit Court of Appeals, said in a Tuesday press conference that a memo would be circulated to federal judges by the end of the week with final text expected to be published in a few months, per Courthouse News. 

The Judicial Conference usually puts out recommendations for lower courts to follow; some experts were unsure whether it has the authority to enforce something more binding. 

“The real question is whether the statutes authorize the Judicial Conference itself to promulgate this rule, as distinguished from recommending to the judicial councils of the circuits that they promulgate a rule,” Arthur Hellman, a professor emeritus and expert in federal courts at the University of Pittsburgh’s school of law, told TPM. 

Other experts think the Conference can promulgate its own policy, but worry about how aggressively it’ll be enforced. Shanor and Alice Clapman, senior counsel in the Brennan Center’s Voting Rights Program, have put forward their own proposal for a more ironclad and enforceable new federal rule to the Judicial Conference’s Rules Committee, which is still pending. 

“Is this a recommendation? How strong of a recommendation? What does this mean, how will it be rolled out in clerks’ offices around the country?” Shanor asked about the new policy. “This is why we filed with the Rules Committee — having this be a rule that you can actually cite and seek to enforce as a party in court, as opposed to a policy, strikes me as important to address these very questions of transparency and uniformity.”

While the details of the policy have yet to take shape, the Judicial Conference’s announcement reveals that it sees judge-shopping as significantly damaging to courts’ legitimacy. 

“The random case-assignment policy deters judge-shopping and the assignment of cases based on the perceived merits or abilities of a particular judge,” Judge Robert J. Conrad, Jr., secretary of the Conference, said in the Tuesday press release. “It promotes the impartiality of proceedings and bolsters public confidence in the federal Judiciary.”

Prompting internal change from judicial institutions can be slow going, and was likely helped along by how blatant the judge-shoppers have been. The practice has produced headline cases including the challenge to mifepristone, which will be argued before the Supreme Court later this month. 

The practice has also become commonplace beyond laymen activist litigants. 

“When you have major litigants like the state of Texas blatantly judge-shopping, the optics of that are contributing to the crisis and the perception, even within judiciary, that it needs to change its policies,” Clapman told TPM. 

Senate Democrats noted in a letter last summer that the state of Texas habitually avoids filing its anti-Biden administration lawsuits in Austin, preferring more dependable courtrooms like Kacsmaryk’s.

The new policy seems to sweep wide, encompassing both federal and state laws. Still, it wouldn’t root out all judge-shopping. Clapman and Professor Katherine Macfarlane, an expert in civil procedure at Syracuse University’s College of Law, both pointed TPM to a case brought by anti-abortion activists meant to bankrupt Planned Parenthood, unrelated to any federal or state action. Such private party action would be harder to rulemake against. 

But the announcement has the potential to significantly reduce the influence of some of the most partisan Trump appointees, and to clog a pipeline through which right-wing litigants have been routinely stymying the Biden administration on everything from abortion to environmental policy to voting rights. It’s all the more significant given that legislative attempts to address the problem have been nonstarters due to a combination of the Senate filibuster, lack of Republican support and lukewarm Democratic enthusiasm outside a select few. 

“Some of the more egregious examples we’ve seen, like the mifepristone litigation and challenges to Biden’s immigration policies, would certainly be covered by this solution,” Clapman said.