The so-called judge-shopping issue — moving lawsuits through courts that virtually guarantees a particular judge to hear a case — is the target of another new bill from Democrats, who have chafed at the practice, which has played a role in the blockbuster abortion scandal. The drug case received renewed attention after it was brought to the court, which will guarantee that a very conservative judge in Texas will hear the case.
Notably, the bill would direct that if a case is seeking a court order halting federal policy nationwide or providing a form of relief beyond the plaintiffs’ filing, the case must be heard by a three-judge panel .
North Carolina Rep. Deborah Ross introduced the bill in the House on Wednesday. Senator Ron Wyden of Oregon will introduce companion legislation after the Senate recesses.
“It is fundamentally unjust for a special interest group to play hopscotch with American courts to find a biased judge inclined to rule for them,” Wyden said in a statement. ”
Wyden was an early notable critic Judge U.S. District Judge Matthew Kacsmaryk, who was appointed by Donald Trump, ruled in favor of a nationwide halt to the use of medical abortion pills and is hearing all cases brought in Amarillo, Texas.
The Wyden and Ross legislation takes a two-pronged approach to blocking efforts to bring lawsuits against specific judges deemed sympathetic to certain plaintiffs — including cases where challengers seek to block federal policy nationwide.
“Judge Kachmarik’s unprecedented exclusion of mifepristone from Texas underscores the dangers of judge shopping,” Ross, the deputy ranking member of the House Judiciary Committee, said in a statement, referring to the Medication abortion drugs. “No one should have the right to choose who decides their case, especially when the ruling will have broad implications for all Americans.”
The bill would require that most civil cases (with the exception of a few small classes of actions) be litigated in a court in which a judge is appointed for no more than 25% of all cases filed.
Under the requirement that a panel of three judges hear cases seeking a nationwide injunction first, the measure does not specify how such a panel will be allocated. Instead, it seeks to restore the system used to bring constitutional challenges to state or federal law before changes were made to the judicial process in 1976. A constitutional challenge to the redistricting plan is still under the first round of proceedings by a three-judge panel. As in those cases, the new bill would require at least one of the three panel members to be a circuit judge. If appealed, the case would go directly to the Supreme Court for review.
Other recent proposals for judge selection have taken a different approach.
Sen. Mazie Hirono, D-Hawaii, on the Senate Judiciary Committee, unveiled a bill in April that would will be given exclusive jurisdiction The suit is seeking a nationwide court order in left-leaning Washington, D.C., federal court.
legislation introduced in the house this month Requested by Rep. Mikie Sherrill, D-NJ Any civil action seeking a court order applicable nationwide shall be brought in a judicial district with two or more sitting judges appointed to hear the case.
Under the Wyden and Ross Act, right-leaning plaintiffs can still sue in states governed by the U.S. Court of Appeals for the Fifth Circuit, where they will draw panel assignments from a very conservative pool of judges. Progressive plaintiffs can sue in states governed by the liberal 9th Circuit, taking advantage of the left-leaning judge pool. The system would also preserve the possibility of circuit splits, a situation that increases the likelihood of Supreme Court intervention when appeals courts are divided on legal issues.
“The goal here is not to prescribe legal outcomes, but to mitigate the harm that judges’ choices might cause,” Wyden said. “There may be shopping rounds, but with a three-judge panel you can have a stronger check on rogue judges like Kascmaryk and have the chance to secure cases faster by appealing directly to the Supreme Court. solution.”
The bill also requires a new transparency mandate to publicize the district court’s allocation system. Its parts set a threshold for how likely an individual judge is to be assigned a case, including accommodations for districts that lack the number of judges meeting the criteria. The bill would allow judges from neighboring districts to be included in those district court assignments and exempt such districts if they are a state’s only district court.
In recent years, legal experts, court reform advocates and even Supreme Court justices have noticed that opponents of the Biden administration are increasingly filing cases in courts that have only one judge — usually, if not another Trump’s Republican appointee — to hear all or most of the lawsuits filed there.
It’s an especially common tactic in Texas, where several federal courts in remote parts of the state assign the vast majority, if not all, of their cases to just one judge.
Texas Attorney General Ken Paxton and his Republican allies in other state attorneys general offices have embraced the tactic, prompting liberal Judge Elena Kagan to testify against Biden in a Supreme Court hearing. The immigration policy challenge says to Paxton attorneys that “you play by the rules, which is fine, but you get to choose your trial court judge.”
However, recent lawsuits over the U.S. Food and Drug Administration’s approval of mifepristone have brought this issue into focus. Challengers, pro-abortion doctors and medical groups filed the lawsuit in Amarillo, months after one of the plaintiffs’ groups formed in the city, which is located in a rural part of the Texas Panhandle.
The case filed in Amarillo is automatically assigned to Kacsmaryk, who before joining the bench worked for a conservative religious liberty organization whose history of personal hostility to abortion was recently documented by the Washington Post.challenger’s agent denied His clients are involved in judge shopping.
Kacsmaryk went on to rule that the drug’s approval should be put on hold in an opinion rife with anti-abortion rhetoric. His order was stayed by the Supreme Court and the appeal is still pending.
The Biden administration and its allies have used other avenues to try to counteract this trend, so far without success. The Justice Department has rescinded requests for judges, including Kacsmaryk, who are often the target of Paxton’s lawsuits, to refer certain cases to the court, where the lawsuits will be randomly assigned to a wider pool of jurists.
Senate Majority Leader Chuck Schumer wrote to the chief judge of the U.S. District Court for the Northern District of Texas — where the Amarillo division is located — asking judges to change the current allocation system so that any civil cases brought in the district would be Randomly assigned among all judges in the district court, regardless of the division in which it was filed.
In his May 16 response, Chief Justice David Godbey acknowledged “public perceptions of inappropriate judge selection in single-judge divisions” and said that “the problems of single-judge divisions are long-standing and they are not limited to any one class of parties.”
But Godby, pointing to the “unusual characteristics” of remote court districts, said adopting Schumer’s proposal would set up its own logistics while asserting that he, as chief justice, “has no authority to unilaterally impose a new method of assigning cases to our district. ”