Plaintiffs in some high-stakes, high-profile cases have found that in some of the country’s federal courts, it’s not hard to cherry pick a sympathetic judge.
Such judge shopping, particularly in cases challenging abortion rights and immigration policy, has been drawing increasing scrutiny. Last month, the federal judiciary’s policymaking body called for colleagues to curb the practice by making the assignment of the biggest civil cases random in the 94 federal district courts. But in two courts in Texas, a favored venue for such challenges, judges said they would not implement the guidance and would continue business as usual.
Now, the Senate’s top Democrat and top Republican have decided Congress should step in. On Wednesday, the Senate majority leader, Chuck Schumer, and the minority leader, Mitch McConnell, each plan to introduce legislation that would alter how certain cases are assigned in the federal courts. Each says that the goal of their respective bills is to eradicate the pursuit of sympathetic judges by savvy litigants. But the bills take different tacks in trying to do that.
Senator Schumer’s bill tracks the guidance last month from the Judicial Conference, the federal judiciary’s policymaking body. It would end the most targeted form of judge shopping, where plaintiffs game a district’s case-assignment system by filing in a small division staffed by one or two judges.
A system in which plaintiffs get to choose their judge, Senator Schumer said in an interview, “perverts the system of justice, which is supposed to be straight down the middle.”
Senator McConnell’s bill does not address concerns about plaintiffs who strategically file in single-judge divisions. Instead, it seeks to curtail the power of a single district court judge to issue a nationwide injunction and block federal policy across the entire country. The bill would limit the scope of district-court rulings to the parties in the case, or similar parties within the borders of the district. If a federal judge found that a U.S. immigration policy were unconstitutional, for example, that decision would not, under Mr. McConnell’s bill, have any immediate effect outside the borders of the judge’s district. The McConnell bill also would set new limits on where litigants in patent cases and debtors seeking bankruptcy can file their cases.
The role of federal judges in small divisions who end up with big cases has been drawing increased attention, particularly after a national abortion-rights case ended up before Judge Matthew J. Kacsmaryk, the only judge in the Northern District of Texas’s Amarillo Division, and an outspoken opponent of abortion.
In the case, Judge Kacsmaryk ruled that the Food and Drug Administration’s 23-year-old approval of the abortion drug mifepristone was invalid. His decision was partly reversed on appeal and the matter is now before the Supreme Court. In challenging Obamacare and Biden administration immigration policies, Ken Paxton, the Texas attorney general, has repeatedly sought to have cases heard by Judge Kacsmaryk and other judges who preside over Texas’s single-judge divisions.
Many legal experts, including a number of judges nominated by Republican presidents, have argued that judge shopping undermines the judiciary’s legitimacy. “There’s a consensus that you shouldn’t be able to pick the judge who decides your case,” said Judith Resnik, a professor at Yale Law School. “Legislation would help underscore that this consensus is shared by Congress, and to add to the mechanisms to enforce it.”
Stephen Vladeck, a professor at the University of Texas Law School, said that Senator McConnell’s proposed elimination of nationwide injunctions would go too far. “The most sensible view is that there are too many, but not that they should be none,” he said. “To say ‘no more nationwide injunctions ever’ is to solve the wrong problem.”
Some of President Donald J. Trump’s most aggressive policy efforts were blocked by nationwide injunctions, and that made the sweeping court rulings a target of Republican critics. The Trump administration claimed to have faced 55 such challenges in three years, compared with 19 nationwide injunctions against Obama administration policies. William P. Barr, Mr. Trump’s attorney general, warned about the “solitary, unelected, life-tenured judge” “overriding the political branches” to foist “potentially idiosyncratic or mistaken views of the law.”
Senator Schumer said his bill focused on single-judge divisions because he found them to be “the most egregious” form of judge shopping, and because the Judicial Conference had already called for the same reform.
The prospects for either bill becoming law are unclear. As of Wednesday morning, Senator Schumer’s bill had 38 co-sponsors, he said. A spokesman for Senator McConnell said his bill had two co-sponsors. Neither bill had drawn any co-sponsors from the opposing party.
Mr. Vladeck, the University of Texas law professor, said that regardless of whether either bill becomes law, bipartisan awareness on Capitol Hill was a positive development. “The mere acknowledgment by two senators of such wildly differing worldviews that there’s something worth fixing here is a pretty good first step,” he said.
