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Republicans will no longer get to handpick their judges when they sue Biden



Plaintiffs hoping to reshape federal or state policies will no longer be allowed to choose which judge will hear their case, at least in federal court. A new policy announced Tuesday by the Judicial Conference of the United States, a government body that sets policy for federal courts, targets rules in some federal courts that the conference said “risked creating an appearance of ‘judge shopping.’”

At least in the short term, this policy is a massive victory for the Biden administration — and, indeed, for anyone who believes that federal and state policies should not rise and fall based on one outlier judge’s partisan views.

Texas’s Republican Attorney General Ken Paxton, for example, has been very aggressive in bringing lawsuits that challenge Biden administration policies before right-wing judges who have then issued sweeping, nationwide orders blocking those policies — sometimes on highly dubious grounds that are reversed, months later, by the Supreme Court.

Among other things, this practice turned Matthew Kacsmaryk, an obscure advocate on the Christian right appointed by former President Donald Trump to the Northern District of Texas, into one of the most powerful government officials in the entire country. Because Kacsmaryk is the only federal trial judge in Amarillo, Texas, any case filed in Amarillo was automatically assigned to him.

The Judicial Conference’s new policy is unlikely to strip Kacsmaryk, or any other judge, of jurisdiction over any case currently on his docket. But it does place significant new limits on litigants’ power to choose which judge will hear any new case that they file in the future.

How cases are assigned to judges in federal courts

The federal judiciary is divided into 94 different geographic districts, which normally encompass either all or part of a state. In many districts, newly filed cases are assigned randomly. So, for example, if a plaintiff files a lawsuit in a district with three Democratic appointees and three Republican appointees, they would have an equal chance of drawing a judge from either party (although some judges are partially retired and have a lighter caseload).

Some districts, however, have used different rules to assign cases — and one very notable example is the United States District Court of the Northern District of Texas. That district, like some others, is subdivided into multiple “divisions,” some of which only have one sitting judge. Any civil case filed in one of these Northern District of Texas divisions was automatically assigned to one judge: Kacsmaryk.

It didn’t take long for lawyers representing Republican causes generally, and the religious right in particular, to figure this out. Kacsmaryk’s courtroom became a magnet for lawsuits attacking federal policies, and he proved to be a rubber stamp for nearly any court order that a conservative litigant asked him to issue.

Among other things, he attempted to ban the abortion drug mifepristone (a decision blocked by the Supreme Court) and ruled that a father had a constitutional right to limit his daughters’ access to birth control. He attempted to neutralize a federal law prohibiting health providers from discriminating against LGBTQ patients, and he’s currently presiding over a trial brought by anti-abortion activists seeking up to $1.8 billion from Planned Parenthood based on frivolous claims that the organization defrauded Medicaid.

So what does the new policy do?

According to the Judicial Conference, the new policy concerns “all civil actions that seek to bar or mandate state or federal actions.” It does not apply to all lawsuits, but it does apply to any in which the plaintiff seeks either a “declaratory judgment” saying that a federal or state policy is invalid or “any form of injunctive relief” changing such a policy.

In these cases, “judges would be assigned through a district-wide random selection process.” So, a case seeking to block a federal policy that is filed in Amarillo would be randomly assigned to one of the 11 active judges or one of the six senior judges who sit in that district. It would not be automatically assigned to Kacsmaryk.

A spokesperson for the Judicial Conference of the United States confirmed via email that this new policy applies “to all 94 US district courts.”

The Judicial Conference did not explain why it decided to hand down this new policy now, but members of both parties have long complained about judge shopping — a problem that also arises in apolitical cases.

The press release announcing the new policy, for example, points to a November 2021 letter from Sen. Thom Tillis (R-NC) and then-Sen. Patrick Leahy (D-VT) that “raised concerns about a concentration of patent cases filed in single-judge divisions.” It also notes that Chief Justice John Roberts expressed concerns about judge shopping in patent cases in his 2021 Year-End Report on the Federal Judiciary.

Sen. Mazie Hirono (D-HI) has also introduced legislation seeking to curb judge-shopping.

Over the long term, the Judicial Conference’s new policy is likely to benefit both Democrats and Republicans. So long as the Supreme Court is controlled by Republican appointees, however, it is likely to be more of a boon for Democrats: The Court’s GOP-appointed majority normally moved very swiftly to block lower court decisions that targeted Trump administration initiatives, while it has often left decisions blocking Biden administration policies in place for months.

The policy will prevent litigants challenging federal and state policies of all kinds from handpicking judges that they know will rule in their favor, but it will not be a panacea against all litigants shopping around for favorable judges. There will still be districts where the judges were appointed mostly by Democrats or mostly by Republicans — the Northern District of Texas is still overwhelmingly Republican, for example — and litigants will no doubt continue to choose districts based on where they think they will receive a favorable hearing.

Federal appeals courts (and the Supreme Court) are ordinarily supposed to defer to the factual findings reached by trial judges. So a litigant who can choose their trial judge gains a lasting advantage even if the case is appealed.

The policy also does nothing to protect against litigants who choose where to file a case based on which appeals court will eventually hear it. The United States Court of Appeals for the Fifth Circuit, which hears federal cases arising out of Texas, Louisiana, and Mississippi, is dominated by Republican appointees closely aligned with the MAGA movement. So Republicans like Paxton can still benefit from this right-wing court, even if they can no longer ensure that all of their trials will be heard by judges like Kacsmaryk.

Still, this is a significant policy change — one that will quell at least some concerns that federal litigation is a rigged game.

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