How Democrats could push back against GOP 'judge shopping'

U.S. District Judge Matthew J. Kacsmaryk of Texas isn’t a household name, but he’s ended up ruling on important legal cases that affect the whole nation.

And that's not by accident.

The reason he’s been the judge presiding over numerous important federal cases is because he’s the focus of what is called “judge shopping.”

Judge shopping — different from “forum shopping,” which is when a lawyer is trying to get a case heard in a jurisdiction where they think they might get a favorable result — is the act of filing lawsuits in typically smaller geographic areas led by particular judges in hopes of getting a favorable result.

This seemingly happened with Kacsmaryk in the mifepristone abortion pill case, where he last month ordered a hold on federal approval of the drug. Judge shopping also was arguably performed by former President Donald Trump in the classified documents case where Trump was trying to delay the legal proceedings as the Justice Department investigated him taking classified documents to Mar-a-Lago, his post-presidential home in Florida.

Kacsmaryk, widely regarded as a conservative ideologue, became a federal judge in 2019 after then-President Trump nominated him in 2017.

Judge shopping is quite easy to do with Kacsmaryk because the vast majority of cases filed in his Northern District of Texas subdivision in Amarillo go to him.

“The Judge Kacsmaryk case is interesting because you’re basically assured you’ll get him,” says Jessica Levinson, a professor of law at Loyola Marymount University.

U.S. District Judge Aileen Cannon in Florida, a Trump nominee who last year made a favorable — and controversial — ruling that favored Trump, is another prime example, Levinson said.

Kacsmaryk’s office did not reply to a request for comment.

Plaintiffs can’t just file with Kacsmaryk because they want to. They must have a reason to be filing with him, such as they live in Texas or are an organization that operates in Texas. In the mifepristone case, some argue that the plaintiff, The Alliance for Hippocratic Medicine, made sure they had the ability to file with Kacsmaryk specifically by incorporating within his subdistrict only months before the lawsuit was filed.

“You see an advocacy organization incorporating in Texas, and I can’t imagine any other reason why they’d do that other than for the express purpose of getting in front of Judge Kacsmaryk,” says Alan Trammell, an associate professor of law at Washington and Lee University.

Potential ‘judge shopping’ pushback

Sen. Mazie Hirono (D-HI) has introduced a bill to push back against this practice of judge shopping.

The bill would make it so any civil lawsuit that would lead to what’s called a “nationwide injunction” — a ruling would affect the whole nation — would have to be heard by the U.S. District Court in Washington, D.C.

If that was what had happened in the mifepristone case, for example, then Kacsmaryk would not have ruled on the case at the federal district court level.

“Activist plaintiffs should not be able to hand-pick individual judges to set nationwide policy, which is why it’s critical we address the issue of judge shopping in our federal courts,” Hirono said in a statement.U.S. Sen. U.S. Sen. Mazie Hirono (D-HI), wearing a face mask with drawings of late Justice Ruth Bader Ginsburg. Shawn Thew-Pool/Getty Images

It’s early, but so far, however, Hirono’s bill has not yet attracted a co-sponsor or received a hearing date.

Nationwide injunctions have become more common in recent years, Levinson said, and Trump was very effective at getting ideological judges, who will issue these kinds of rulings, placed on the federal bench. Levinson says the conservative legal movement seems to see this as a time to achieve as many of its goals as it can now that there are so many judges on the federal courts that are sympathetic to those goals.

“This is the moment. If you’re a conservative, I don’t know if it’s going to get better than this,” Levinson says. “This crop of conservative justices is just so much more conservative than anything that we’ve really seen in the past 75 or 100 years.”

Trump installed so many judges that a plaintiff might not even have to work very hard to get the desired result when filing this kind of suit, Trammell says, because there are now so many “zealots” on the federal bench. He says you could get a favorable ruling with “dumb luck” because of that.

Evan Caminker, a professor of law at the University of Michigan, says he thinks Hirono’s bill would likely “minimize judge-shopping for national injunctions,” because these kinds of cases would all end up before the same district court in Washington, D.C.

That said, he can imagine conservatives might feel such a change would be too beneficial for liberals.

“I suspect some will oppose the bill simply because there happens to be a slight majority of Democratic-appointed judges in D.C. on both the trial and appellate levels, though of course that will change over time,” Caminker says.

Alternatively, Caminker says some have proposed sending these kinds of cases to a random district court. That would also be effective because the plaintiffs filing the lawsuit would have no idea where it was going to be heard.

Regardless of what happens with Hirono’s bill, it is clear the conservative legal movement has gone into hyperdrive trying to craft lawsuits and model legislation to accomplish their goals through courts.

Meanwhile, President Joe Biden’s own judicial nominees are back on track after long delays caused by the extended health-related absence of Sen. Dianne Feinstein (D-CA), whose vote was required on the Senate Judiciary Committee to advance the nominees.

Liberals consider it essential that Biden appoint as many left-leaning judges as possible between now and the 2024 election, when Democrats control both the White House and Senate.