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.