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US federal judiciary moves to curtail 'judge shopping' tactic
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US federal judiciary moves to curtail 'judge shopping' tactic
Mar 12, 2024 4:39 PM

March 12 (Reuters) - The U.S. federal judiciary on

Tuesday adopted a new policy aimed at curtailing "judge

shopping" by state attorneys general, activists and companies

who file lawsuits challenging government policies in courthouses

where one or two sympathetic judges had been virtually

guaranteed to hear their cases.

The policy adopted by the U.S. Judicial Conference, the

judiciary's policymaking body, followed calls by Democratic

lawmakers and others for an end to a system used by

conservatives to successfully block major elements of Democratic

President Joe Biden's agenda in court.

Local court rules had allowed conservatives and others to

target small courthouses in Texas, essentially enabling them to

choose judges who have reliably issued rulings stymieing Biden's

policies on issues like immigration, gun control and LGBTQ

rights, to hear their lawsuits.

The new judicial policy would require lawsuits seeking to

block state or federal laws to be assigned a judge randomly

throughout a federal district and not be heard just by judges in

a specific courthouse, or division, within the larger district.

U.S. Circuit Judge Jeffrey Sutton, the newly appointed chair

of the Judicial Conference's executive committee, said the

change was prompted by the "plethora of national, statewide

injunctions" being issued by judges in such cases.

The chief judge of Texas' Southern District, Randy Crane, in

a statement said the Judicial Conference's policy raised

questions that need to be addressed before it could be

implemented by courts. He said it also "seems to be a response

to decisions adverse to certain political interests, given its

timing."

Nationwide injunctions allow a single judge to block

implementation of new rules across the entire country. Sutton

said it "makes a lot of sense" to ensure cases seeking such

injunctions be heard by a broader array of judges than the one

or two within a specific courthouse.

Democratic Senate Majority Leader Chuck Schumer in a

statement welcomed the Judicial Conference's decision to "update

rules, level the playing field, and bring more justice back into

the justice system by finally putting an end to unscrupulous

plaintiffs having the ability to choose their judge."

'STRATEGIC CALCULUS'

Calls for the judiciary to crack down on the practice by

the Biden administration, Democratic lawmakers, and the American

Bar Association had come in response to mounting concern over

lawsuits filed in single-judge divisions in Texas by Republican

Attorney General Ken Paxton and other state attorneys general,

conservative activists, and more recently companies and business

groups, challenging government policies.

Sutton said the issue had existed for years. Democratic

attorneys general during Republican former President Donald

Trump's administration had likewise sought out favorable venues

in states like California and Washington for their lawsuits

seeking to block his policies.

But Texas' federal courts have provided Republican activists

with a unique advantage because its four districts are broken

into 27 divisions, the smallest of which have just one or two

judges tasked with hearing most cases filed there. The judges in

many of those smaller federal courthouses in cities like Fort

Worth, Amarillo or Lubbock are Republican appointees.

"The polarization of the federal bench has increased the

friendliness of certain forums," Stephen Vladeck, a law

professor at the University of Texas, told Reuters ahead of the

policy change. "It has made the strategic calculus that much

more decisive."

ABORTION PILL CASE

The tactic gained national attention after conservative

litigants filed a lawsuit before U.S. District Judge Matthew

Kacsmaryk in the single-judge division of Amarillo, seeking to

suspend approval of the abortion pill mifepristone, which he

ordered in April.

Kacsmaryk, an appointee of former Republican President

Donald Trump, was previously a conservative Christian legal

activist involved in anti-abortion causes. The U.S. Supreme

Court has allowed the pill to remain on the market while it

considers an appeal in the case, set for argument on March 26.

More recently, companies like Humana and SpaceX and

trade groups had also made these courts their destination of

choice for challenges to Biden administration policies or

advocating a stance popular among Republicans.

A Reuters analysis identified at least 27 such lawsuits by

companies and business groups since Biden took office that were

filed in Texas' smaller federal courthouses.

At least 11 were filed in Fort Worth, according to research

by the progressive group Accountable.US and reporting by

Reuters, many of which were assigned to U.S. District Judge Reed

O'Connor, who once declared the Affordable Care Act

unconstitutional.

While many of those cases were in their early stages, some

industry groups pursuing the strategy had already found success.

On Friday, U.S. District Judge J. Campbell Barker in Tyler,

Texas, sided with the U.S. Chamber of Commerce in striking down

a National Labor Relations Board rule that would treat many

companies as employers of certain contract and franchise workers

and require them to bargain with unions representing them.

Under a local order, Barker is one two Trump appointees

assigned to hear all civil cases filed in Tyler.

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