Judge for Yourself

Lawyers call it “forum shopping,” but in lay terms, people refer to the practice as “judge shopping.” It’s the practice of identifying judicial predispositions and biases and finding a way to get a matter brought before a judge likely to rule in your favor. There are all sorts of ways to find those biases, and organizations built around certain political philosophies often spend a lot of time creating detailed lists of such judges. Sometimes, if a judge is appointed and not elected, the political bias of the person making the appointment is a starting point. 

Federal judges are appointed by the then sitting president, often in full consultation with the relevant local Congressperson, and then are subject to Senate confirmation. Elected judges, in many states, are easily identified by their constituent support. Additionally, biases can be detected by potential judicial nominees’ employment history, notable casework and through professional publications. If the subject judge has a judicial track record, that becomes more relevant.

Generally, litigants do not get to choose their judges directly. Most judicial districts have several judges, and the chief judge in that court system, mostly applying neutral principles based on availability and caseload, designates the relevant trial judge. While that’s the general rule, there are judicial districts, even in the federal system, which are so small that they only have a single judge. And if you want to change a nationwide policy, you need a judge with nationwide jurisdiction, which of necessity is a federal court. Berkeley Dean Erwin Chemerinsky, writing for the April 25th Los Angeles Times tackles this issue of “blatantly handpicking jurists who can issue national rulings” and how the federal court system works:

“There are 94 federal district courts in the U.S., with each district split into divisions. In Texas, there are four federal district courts with 27 divisions in total. In eight divisions, there is only one judge. Any case filed in that division goes automatically to that judge. In other words, the litigants know exactly who will get their case.

“The only federal judge in the Amarillo division of the U.S. District Court for the Northern District of Texas is Judge Matthew Kacsmaryk , a Trump appointee and former lawyer for the conservative legal group First Liberty Institute. [Pictured above at his swearing in ceremony.] Conservative litigators know if they file their case in federal court in Amarillo, their judge will be Kacsmaryk.

“When Texas wanted to challenge President Biden’s decision to end the Trump-era ‘Remain in Mexico’ policy — which required those seeking asylum in the U.S. to remain in Mexico while their applications were being considered — Kacsmaryk was their man. In December, Kacsmaryk ruled that it was unconstitutional for clinics receiving federal funds under a law enacted in 1970 to provide contraceptives to minors without parental consent. In doing so, he ignored Supreme Court precedents that explicitly protect a fundamental right of minors to have access to contraceptives.

“Kacsmaryk is not the only option for conservatives. If they file in federal court in Wichita Falls, Texas, the judge will be Reed O’Connor. He is the judge who invalidated the Obama administration’s protection of transgender students, declared unconstitutional the Affordable Care Act, struck down the Indian Child Welfare Act, and blocked the military from requiring Navy SEALs to be vaccinated. And until recently, if a case was filed in Victoria, Texas, the only federal district judge in that division hearing civil cases was Drew Tipton, another Trump appointee. He too has invalidated other Biden attempts to reverse restrictive Trump-era immigration policies.”

Indeed, Kacsmaryk was the federal trial judge who banned “Mifepristone [which had] been approved by the Food and Drug Administration since 2000 as part of a two-drug protocol that is used to terminate pregnancies. It is estimated that 54% of abortions in the United States use these drugs. Before the federal district court’s order that the sale and distribution of mifepristone be stopped, never had any judge overruled the FDA’s approval of a drug.” Chemerinsky. And while that decision has been reversed, at least temporarily between the conservative Fifth Circuit and the Supreme Court, the case is a classic lesson on how a distant court, far, far away from the federal agency it is attempting to limit, can give biased constituencies the result they want.

Kacsmaryk’s employment history has been as a litigating warrior against abortion and gender treatment. Facing judicial confirmation in 2017, it seems that he purposely altered his obvious religious bias with what I believe is doctored Senate disclosure statement, mandated of all federal judicial nominees: ““[In 2017,] Kacsmaryk asked for his name to be removed from [from a submitted law review article] for ‘reasons I may discuss at a later date’ and be replaced by two coworkers at the religious freedom-focused law firm First Liberty Institute where he worked… 

“The article was not disclosed by Kacsmaryk—who had already been interviewed by Republican Sens. Ted Cruz (Texas) and John Cornyn (Texas)—in a questionnaire submitted to the Senate Judiciary Committee, which reviews all judicial nominations and requires nominees to disclose all published work… The article, titled ‘The Jurisprudence of the Body,’ argues that religious physicians ‘cannot use their scalpels to make female what God created male’ and ‘cannot use their pens to prescribe’ abortion medication ‘designed to kill unborn children.’” Forbes, April 15th.

In Kacsmaryk’s world, a very conservative interpretation of the Bible trumps his loyalty to protect the Constitution. Shouldn’t challenges to federal laws and agency jurisdiction be mandated to be heard where the relevant body of that agency sits? Why should taxpayers fund transporting key witnesses at those agencies, housing them, in order to testify in a matter of existential importance? And even if we want to maintain that ability to sue anywhere that a federal ruling may have an impact, perhaps Dean Chemerinsky has a solution: “We never should be in this mess. The rules should be changed to prevent such blatant judge shopping. The rules should require that there be random selection from at least 10 federal judges for any case. When there is a request for a nationwide injunction, it should be assigned randomly to any judge in that federal circuit. And it is time to rethink the power of a single federal judge to issue a nationwide injunction, deciding a constitutional issue for the entire country.” Justice requires neutrality.

I’m Peter Dekom, and judicial forum shopping is an over-practiced art that needs to be ended everywhere.