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Federal courts seek to stop ‘judge shopping’ with new rule

Lawsuits seeking to overturn national policies will be randomly assigned among a larger pool of judges

Abortion rights adovcates gather in front of the J Marvin Jones Federal Building and Courthouse in Amarillo, Texas, in March 2023.
Abortion rights adovcates gather in front of the J Marvin Jones Federal Building and Courthouse in Amarillo, Texas, in March 2023. (Moises Avila/AFP via Getty Images)

The federal judiciary announced a new rule Tuesday to discourage so-called “judge shopping” nationwide by making sure high-profile lawsuits seeking to overturn statewide or national policies are randomly assigned among a larger pool of judges.

The Judicial Conference of the United States, the advisory body for the federal judiciary, announced the change after its semiannual meeting on Tuesday.

The conference has faced pressure from Democrats in Congress and outside groups for more than a year to make a national policy change in response to a trend of conservative litigants challenging Biden administration policies in locations where they are likely to get assigned to a particular judge.

The nation’s federal courts are divided into districts, and some of those are split into divisions where there is only one or just a handful of judges to handle the case.

Jeff Sutton, a judge for the U.S. Court of Appeals for the 6th Circuit who chairs the Executive Committee of the Judicial Conference, said certain major cases will be randomly assigned to a judge within an entire district rather than only within the division where the lawsuits are filed.

That could mean cases with national implications will be assigned from a pool of a dozen or more judges rather than a pool of one, Sutton told reporters in a conference call.

Sutton said the rule would go into effect immediately but actual implementation could take some time. He also said it would not apply retroactively to litigation that has already been filed.

Senate Majority Leader Charles E. Schumer, D-N.Y., sent the Judicial Conference a letter last year that highlighted Texas Attorney General Ken Paxton’s propensity for filing suits in single-judge divisions.

The letter said the default rule allowing individual district chief judges to set their own case assignment rules “is permitting litigants to hand-pick their preferred judges and effectively guarantee their preferred outcomes.”

Several high-profile national lawsuits started in single-judge divisions, including the challenge to the FDA approval of the medication abortion drug mifepristone, which the Supreme Court is set to hear later this month.

Judge Matthew Kacsmaryk of the U.S. District Court for the Northern District of Texas oversaw the medication abortion challenge from his single-judge division in Amarillo, Texas. Kacsmaryk, a Trump appointee, has also overseen challenges to a Labor Department rule on allowing retirement plan managers to consider environmental, social and corporate governance issues in their plan decisions.

In response to Kacsmaryk’s initial ruling in the case, which overturned the FDA’s original approval of mifepristone, Democrats in both chambers of Congress introduced bills to change judge assignment policy.

Three bills from Rep. Mikie Sherrill, D-N.J.; Sens. Mazie K. Hirono, D-Hawaii, and Ron Wyden, D-Ore.; and Rep. Deborah K. Ross, D-N.C., would have changed judge assignments for cases seeking nationwide injunctions. None of the proposals has advanced so far this Congress.

District judges in Texas who are in single-judge divisions have handled other major litigation, including a ruling last month that the House violated the Constitution through its proxy voting rules in passing the fiscal 2023 omnibus spending bill.

Additionally, more than a dozen challenges to Biden administration immigration policy have been filed in single-judge divisions in Texas.

Last year the full American Bar Association also recommended a change to judge assignment “when such cases seek to enjoin or mandate the enforcement of a state or federal law or regulation.”

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