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Opinion | Don’t Let Republican ‘Judge Shoppers’ Thwart the Will of Voters [1]

['Stephen I. Vladeck']

Date: 2023-02-05

Federal law used to require plaintiffs to show why a specific division was a proper place for their suit, but Congress eliminated that requirement in 1988. Today, a plaintiff merely has to show that the broader district is an appropriate venue — which is relatively easy to do when the federal government, with a jurisdiction of the entire country, is the defendant.

Litigants of all political and substantive stripes have taken advantage of this loophole — including big corporations like Purdue Pharma, which filed its bankruptcy in the White Plains division of the Southern District of New York, which has a single eligible judge, rather than in Manhattan, where it would have faced a random draw among more than a half-dozen judges with more diverse reputations.

But Mr. Paxton has made the loophole into an art form. Of the 26 anti-Biden suits he has filed to date, he’s filed seven each in Amarillo and Victoria.

So far, blue state officials have barely ever gone judge shopping. While they have picked friendly district courts, like those in San Francisco or Honolulu, they were still subject to random assignment of judges within those courts.

In his 2021 year-end report on the federal courts, Chief Justice John Roberts alluded to an instance in which judge shopping had caused trouble: The district judge assigned to hear all cases filed in Waco, Texas, had lured patent cases from across the country into his court by touting favorable procedural and logistical arrangements. In that case, when the criticism was not about a Republican state challenging a Democratic president’s policies, there was general agreement that this kind of procedural manipulation was inappropriate, leading the chief judge of the Western District of Texas to change the case assignment rules. Today, any new patent case filed in the Waco division is randomly assigned among 12 judges in the broader district.

But if judge shopping is a problem in the patent context, it’s a problem outside it as well. And the fixes are both easy and obvious. District courts can, as Texas’ Western District just did, change their rules of judge distribution on their own — without any national legislation. District courts can also agree to transfer cases out of their single-judge divisions to avoid the appearance of procedural manipulation, which the Biden administration has asked Judge Tipton to do for the most recent immigration challenge filed by Texas in Victoria.

Failing that, Congress can require district courts, when dividing their business, to ensure that no case has a greater than 50 percent chance of being assigned to a single judge. Congress can also require that suits seeking nationwide relief against a federal policy be heard by three district judges, not one, to avoid (or at least to mitigate) the judge shopping that has become so prevalent.

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[1] Url: https://www.nytimes.com/2023/02/05/opinion/republicans-judges-biden.html

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