There may finally be some resistance to judge-shopping in federal courts

Good news.

The Judicial Conference, the policymaking body for federal courts, announced Tuesday that it would take action against the judge-shopping that has let right-wing litigants funnel cases to friendly, often Donald Trump-appointed judges.

“The policy addresses all civil actions that seek to bar or mandate state or federal actions, ‘whether by declaratory judgment and/or any form of injunctive relief,’” the conference said in a press release. “In such cases, judges would be assigned through a district-wide random selection process.”

It will apply to “cases involving state or federal laws, rules, regulations, policies, or executive branch orders.”

For the past few years, those who want to challenge Biden administration policies have often sought out divisions with one or two ideologically-aligned judges, all but guaranteeing their desired outcome. Judge Matthew Kacsmaryk in Amarillo, most infamous for his ruling against the abortion drug mifepristone, has become the poster boy for this practice.

Kacsmaryk and his ilk have worsened the problem with their willingness to hand down nationwide relief, rather than narrowing it to the plaintiffs before them. This dynamic vests one district judge with enormous power to dictate federal authority, shutting down policies irksome to right-wing plaintiffs as the cases work their way through the courts.

For experts who have been pounding the alarm on judge-shopping, Tuesday’s announcement came as a welcome surprise.

“I’m absolutely delighted that courts have recognized the importance of this issue,” Amanda Shanor, assistant professor of legal studies and business ethics at the the Wharton School of the University of Pennsylvania, told TPM. “They appear to have adopted a policy that will address some of the major, most egregious and troublesome forms of judge shopping.”

But even evangelists of judge-shopping reform had some reservations about the press release, which did not link to any policy text and was devoid of details, including about how it would be enforced.

The Judicial Conference did not immediately respond to TPM’s questions about policy text. Judge Jeffrey Sutton, Chief Judge of the Sixth Circuit Court of Appeals, said in a Tuesday press conference that a memo would be circulated to federal judges by the end of the week with final text expected to be published in a few months, per Courthouse News.

The Judicial Conference usually puts out recommendations for lower courts to follow; some experts were unsure whether it has the authority to enforce something more binding.

“The real question is whether the statutes authorize the Judicial Conference itself to promulgate this rule, as distinguished from recommending to the judicial councils of the circuits that they promulgate a rule,” Arthur Hellman, a professor emeritus and expert in federal courts at the University of Pittsburgh’s school of law, told TPM.

Still a lot of details to work out and it’s not clear what the timeline is, but anything that allows for fewer cases to automatically go to Ken Paxton’s favorite judges is a good thing. There’s still the huge issue of the Fifth Circuit’s lawlessness, but that’s going to have to be addressed by Congress. That’s a matter for another post. For now, let’s hope this goes as far as possible. Kevin Drum has more.

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One Response to There may finally be some resistance to judge-shopping in federal courts

  1. Pingback: Fifth Circuit mostly upholds that wingnut anti-birth control ruling | Off the Kuff

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