Don’t Let Republican ‘Judge Shoppers’ Thwart the Will of Voters

For the 26th time in two years, the Texas attorney general Ken Paxton recently filed a lawsuit in federal court challenging a Biden administration policy. The suit, which seeks to wipe out a new Labor Department rule about the investment of pension trust assets, wasn’t filed in Austin, the state capital, or in Dallas, where the Labor Department’s regional offices are, or anywhere else with a logical connection to the dispute.

It was filed in Amarillo. Why Amarillo? By filing there, Mr. Paxton had a 100 percent chance of having the case assigned to Judge Matthew Kacsmaryk — appointed to the bench by President Donald Trump in 2019 and a former deputy general counsel to the First Liberty Institute, which frequently litigates religious liberty cases before the Supreme Court.

“Forum shopping” has long been a problem in civil litigation. Clever lawyers use procedural rules to file in courts deemed most likely to be sympathetic to their claims. But what Mr. Paxton and other plaintiffs are doing is something far more nefarious — they’re engaging in a novel and specific form of “judge shopping,” seeking out the specific judge whom they wish to hear their case, presumably because of how they expect that judge to rule.

By taking advantage of a loophole in federal procedure, these plaintiffs are able to rely on a small handful of district judges appointed by Mr. Trump to thwart major features of President Biden’s agenda. The tactic upends the tradition of random assignment of judges and raises serious questions about the fairness and impartiality of the judicial system. And it can — and should — be easily fixed, whether by the courts themselves or, failing that, by Congress.

These cases (and others brought by private plaintiffs in Texas’s small divisions) have put a hard stop on several ambitious Biden administration initiatives, among them ones related to abortion and immigration. They include at least five administration policies on immigration as well as the student loan debt relief program, the Department of Health and Human Services’ post-Dobbs abortion guidance, and federal Covid vaccination mandates.

More requests for such relief are pending. In November, the Alliance Defending Freedom filed a lawsuit in Amarillo that seeks to revoke the Food and Drug Administration’s approval of mifepristone, one of the drugs used during a medication abortion, which could make it unavailable nationwide.

Here’s how the loophole works: For decades, Congress has split up many of the 94 federal district courts into smaller “divisions” and has left it to each district court to decide how to divvy up cases among its divisions. Texas’s federal courts, in turn, have distributed their judges unevenly. Of the 27 divisions in Texas’s four district courts, nine have a single judge; 10 others have only two.

Although other states require judges to move around from time to time to avoid judge-shopping, Texas doesn’t. Thus, any new suit filed in Amarillo is sure to go to Judge Kacsmaryk, any new suit filed in Wichita Falls goes to Judge Reed O’Connor and any new suit filed in Victoria goes to Judge Drew Tipton.

The ability of litigants to handpick judges is strengthened by the increasing polarization of the judges sitting on district court benches. It’s increasingly possible to pick a judge who may be an ideological outlier among his peers. If anti-abortion groups can funnel all nationwide litigation challenging federal policies to Judge Kacsmaryk, and if anti-immigration groups can funnel all nationwide litigation challenging federal policies to Judge Tipton, that turns foundational principles about the structure of the legal system on their head.

Federal law used to require plaintiffs to show why a specific division was a proper place for their suit, but Congress eliminated that requirement in 1988. Today, a plaintiff merely has to show that the broader district is an appropriate venue — which is relatively easy to do when the federal government, with a jurisdiction of the entire country, is the defendant.

Litigants of all political and substantive stripes have taken advantage of this loophole — including big corporations like Purdue Pharma, which filed its bankruptcy in the White Plains Division of the Southern District of New York, which has a single eligible judge, rather than in Manhattan, where it would have faced a random draw among more than a half-dozen judges with more diverse reputations.

But Mr. Paxton has made the loophole into an art form. Of the 26 anti-Biden suits he has filed to date, he’s filed seven each in Amarillo and Victoria.

So far, blue state officials have barely ever gone judge-shopping. While they have picked friendly district courts, like those in San Francisco or Honolulu, they were still subject to random assignment of judges within those courts.

In his 2021 year-end report on the federal courts, Chief Justice John Roberts alluded to an instance in which judge shopping had caused trouble: The district judge assigned to hear all cases filed in Waco, Texas, had lured patent cases from across the country into his court by touting favorable procedural and logistical arrangements. In that case, when the criticism was not about a Republican state challenging a Democratic president’s policies, there was general agreement that this kind of procedural manipulation was inappropriate, leading the chief judge of the Western District of Texas to change the case assignment rules. Today, any new patent case filed in the Waco Division is randomly assigned among 12 judges in the broader district.

But if judge shopping is a problem in the patent context, it’s a problem outside of it as well. And the fixes are both easy and obvious. District courts can, as Texas’s Western District just did, change their rules of judge distribution on their own — without any national legislation. District courts can also agree to transfer cases out of their single-judge divisions to avoid the appearance of procedural manipulation, which the Biden administration has asked Judge Tipton to do for the most recent immigration challenge filed by Texas in Victoria.

Failing that, Congress can require district courts, when dividing their business, to ensure that no case has a greater than 50 percent chance of being assigned to a single judge. Congress can also require that suits seeking nationwide relief against a federal policy be heard by three district judges, not one, to avoid (or at least to mitigate) the judge shopping that has become so prevalent.

Whatever the solution, doing nothing will simply accelerate what is already a race to the bottom — in which handpicked, outlier district judges for whom nobody voted are increasingly able to dictate federal policies on a nationwide basis.

Right now, this practice may be beneficial for Republicans. But if nothing changes, you can be sure Democrats will try to take advantage when the next Republican sits in the White House. And regardless of who benefits in the short term, in the long term, the proliferation of this practice will be disastrous for the rule of law.

Stephen I. Vladeck (@steve_vladeck), a professor at the University of Texas School of Law, is a co-host of “The National Security Law Podcast” and the author of the forthcoming “The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic.”

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