The federal judiciary announced Tuesday a new rule aimed at mitigating so-called judge shopping strategies, a controversial practice where litigants single out a particular judge to hear their case. The practice has come under bipartisan scrutiny in recent years.
The Judicial Conference of the United States, the advisory body of the federal judiciary, announced the changes following its semiannual meeting on Tuesday, saying certain cases would now be randomly assigned to a judge within an entire district rather than merely within the division where the lawsuits are filed, according to a press release.
“The current issue relates to nationwide injunctions or statewide injunctions,” U.S. Court of Appeals for the 6th Circuit Judge Jeff Sutton, who chairs the Executive Committee of the Judicial Conference, said during a press conference Tuesday afternoon.
“So when it comes to those claims, it’s a little bit hard to say you need one division of one state to handle it since, by definition, it extends at a minimum throughout the state and possibly to the whole country,” Sutton added.
The practice of judge shopping is most commonly associated with patent cases. Supreme Court Chief Justice John Roberts urged action in 2021 to counter an effort to direct many of the nation’s patent cases to specific judges in Texas, a move that was cited by the Judicial Conference in its news release.
During the Trump administration, some lawsuits directed at the former president’s policies by left-leaning and Democratic groups were accused of making efforts to seek favorable judges for litigation by filing cases in Northern California and Brooklyn, which largely favored the odds of landing before a Democratic-appointed judge.
The issue has also drawn quibbles from Democrats over a federal district in Amarillo, Texas, where the state’s attorney general’s office and conservative litigation groups have filed several cases challenging the Biden administration’s policies in divisions with very few judges to choose from, sometimes only one.
Last April, U.S. District Judge Matthew Kacsmaryk, a Republican appointee, ruled in favor of a significant conservative legal effort to suspend the Food and Drug Administration’s 2000 approval of mifepristone, which is one of two drugs used for abortions.
The surprise ruling catapulted the FDA case to the Supreme Court following appeals by the Justice Department, and the high court is slated to weigh during March 26 oral arguments if an appeals court decision that upheld the agency’s approval of the drug but limited access to the drug by mail should be upheld or reversed.
Last summer, Rep. Mikie Sherill (D-NJ) introduced a bill that would require any civil lawsuit seeking a court order that would apply nationwide to be filed in a division where there are two or more active judges assigned to hear cases.
Senate Judiciary Committee Chairman Dick Durbin (D-IL) claimed at the time that judge shopping was “clearly what’s going on in Amarillo, Texas,” in regard to the abortion drug ruling. In July, Senate Majority Leader Chuck Schumer (D-NY) wrote a letter to the Judicial Conference threatening congressional action if it did not raise a solution to resolve concerns about judge shopping.
The Judicial Conference’s press release cited a bipartisan November 2021 letter signed by Sens. Thom Tillis (R-NC) and Pat Leahy (D-VT), the latter of whom has since retired, outlining concerns about the “concentration of patent cases filed in single-judge divisions.”
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“The extreme concentration of patent litigation in one district and the unseemly and inappropriate conduct that has accompanied this phenomenon are, in our view, the result of an absence of adequate rules regulating judicial assignment and venue for patent cases within a district,” the senators wrote.
The executive committee chairman said there would soon be a memo circulated among district courts across the country that covers the implementation of the new policy, noting it could take some time before it goes fully into effect.