A Democratic lawmaker is putting forward the latest effort to tackle so-called judge-shopping – a tactic recently used by foes of the Biden administration to obtain nationwide injunctions on federal policies by filing legal challenges in single-judge courthouses, essentially allowing them to pick who hears their case.
House Rep. Mikie Sherrill of New Jersey on Tuesday rolled out a bill that would require any civil lawsuit seeking a court order that would apply nationwide be filed in a judicial district where there are two or more active judges assigned to hear cases. It’s the second Democratic legislative proposal in recent weeks to address the trend.
The “forum-shopping” strategy used by litigants – on both the left and the right – to file lawsuits in courtrooms where the case is likely to be assigned to a sympathetic judge is not a new strategy.
But the practice has escalated in the legal battles over President Joe Biden’s agenda as conservatives have focused on judicial divisions – several of them in Texas – where just one judge hears all or most of the cases filed there.
The lawsuit brought by anti-abortion doctors to challenge the federal government’s approval of medication abortion drugs is perhaps the most prominent recent example.
One of the groups behind the case, weeks before their lawsuit was filed, incorporated in Amarillo, Texas, where US District Judge Matthew Kacsmaryk hears all of the lawsuits filed in that federal court. Kacsmaryk agreed with the plaintiffs and sought to cut off nationwide access to the abortion drug, only to have his order paused by the Supreme Court.
The challengers’ lawyer has denied to CNN that they engaged in judge-shopping. Still, the case prompted Sherrill to draft the judge-shopping legislation.
“You read his opinion and, and it’s not a very well informed one,” Sherrill told CNN. “So to think that conservatives could drive cases to this one judge, and this one extremist court, doesn’t feel like justice.”
Texas Attorney General Ken Paxton has also apparently embraced the tactic. His office – sometimes joined by Republican attorneys general from other states – has filed at least a half dozen lawsuits in the Amarillo division, which is in a far-flung area of northern Texas far from the state’s capital. Paxton’s office also has funneled much of its litigation against the Biden administration through the Victoria, Texas, division, where Judge Drew Tipton is all but guaranteed to hear the civil cases brought there.
Kacsmaryk and Tipton are Donald Trump appointees who have now issued several rulings against Biden policies, including in challenges to multiple aspects of the president’s immigration agenda.
In one such immigration case, where the Justice Department tried unsuccessfully to object to Texas’ choice of venue, a lawyer for Paxton’s office admitted they had purposefully filed the lawsuit in Victoria, Texas, in order to get it in front of Tipton, pointing to the judge’s familiarity with other immigration-related litigation.
According to a February DOJ filing in that case, the Texas attorney general has filed at least 18 lawsuits against the federal government “in Divisions where the case would necessarily be assigned to a single, pre-determined judge.”
Sherrill’s proposal follows a measure from Sen. Mazie Hirono of Hawaii. That bill, introduced last month, targets the practice by requiring that civil lawsuits seeking nationwide court orders go through the federal district court in Washington, DC. Senate Judiciary Chairman Dick Durbin told CNN last month he wanted to take a look at Hirono’s judge-shopping bill.
“That’s clearly what’s going on in Amarillo, Texas,” said Durbin, an Illinois Democrat.
It’s unclear what kind of traction either measure will get in Congress, with Republicans controlling the House. Nevertheless, the proposals spotlight a source of frustration for the Biden administration and Democrats on Capitol Hill. Senate Majority Leader Chuck Schumer wrote an April 27 letter to the Judge David Godbey – the chief judge of the US District Court for the Northern District of Texas, under which the Amarillo division sits – calling on him to rework the system by which cases are assigned there.
Supreme Court Justice Elena Kagan has also referenced the practice, alluding to it during oral arguments in a Texas lawsuit against a Biden immigration policy last fall, as she grilled a lawyer for Texas on whether the immigration policy was inflicting the kind of harm on the state that warranted judicial intervention.
She noted that “in Texas, there are divisions within districts. You can pick your trial court judge.”
“You know, you play by the rules, that’s fine, but you pick your trial court judge,” Kagan added. The case, which was originally filed in the Victoria division, has not yet been decided by the Supreme Court.
The Justice Department has tried to push back against the strategy in court, by filing requests to move some of the lawsuits brought by Texas against Biden policies out of courthouses where just one or two judges hear all of the cases.
Kacsmaryk and Tipton both rejected such requests. A third judge, US District Judge James Wesley Hendrix – who hears two-thirds of lawsuits filed in Lubbock, Texas – is still weighing a DOJ bid to move a lawsuit challenging last year’s federal appropriations bill to either the federal court in Washington or in Austin.
