House of Delegates

'Judge shopping' in federal courts should end, resolution says

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Federal judges should be assigned to cases randomly to prevent the appearance of litigants picking districts and judges offering the most likely path to victory, the House of Delegates agreed at the ABA Annual Meeting.

Coming after accusations of “judge shopping” in high-profile, politically charged cases, Resolution 521, submitted by the Section of Litigation, aims to “help support the legitimacy of our federal courts and the public’s confidence in them,” according to the report accompanying the resolution.

“It’s about the issue of forum-shopping by picking judges—in particular, judge-shopping—in individual divisions where there is only one judge sitting in that division,” said Laurence Pulgram, a delegate from California representing the Litigation Section, in introducing the resolution. “You go to division A, you get Judge X. That’s the way it works.”

As of 2018, 55 of the 94 federal district courts are divided by geography and “at least 35 of those 55 divisions appear to have either a single district judge or two district judges assigned to each,” according to the report accompanying the resolution.

If the public starts to think the system is rigged, “the public starts to distrust the system,” Pulgram said. “We believe that the courts can solve this problem, and we think that we should, as a bar association, urge them to do so.”

Speaking in support of the resolution, Mark I. Schickman, a delegate from California representing the Section of Civil Rights and Social Justice, said the resolution “is not about any individual case, but it’s about the respect for and protection of the judiciary.”

Plaintiffs challenging President Joe Biden’s administration policies, including the student loan forgiveness plan, immigration and health care, often have filed suit in divisions where there were only one or two active federal judges, guaranteeing the case would be heard by appointees of Republican administrations.

Pulgram discussed how in recent years hundreds of patent owners filed cases with nationwide impact in the Waco division of the Western District of Texas, where there was only one judge. It resulted in nearly 25% of patent cases nationally being handled by a single judge, Alan Albright, according to the report accompanying the resolution.

This caught the attention of Chief Justice John Roberts, who in his 2021 Year-End Report on the Federal Judiciary alluded to judge-shopping in these patent cases.

“Senators from both sides of the aisle have expressed concern that case assignment procedures allowing the party filing a case to select a division of a district court might, in effect, enable the plaintiff to select a particular judge to hear a case,” he wrote.

“What he said set in motion a process in which that division, that district, changed its rules itself,” Pulgram said.

But judge-shopping has not only occurred in patent cases. An amicus brief filed in U.S. v. Texas, a case decided by the U.S. Supreme Court in June over Texas and Louisiana’s standing to challenge federal immigration enforcement guidelines, listed 20 federal lawsuits filed in 2021 and 2022 by the Texas attorney general in Texas district courts against the Biden administration. Of those 20 cases, 19 were assigned to a Republican-appointed judge, and 15 were filed in either a one- or two-judge division.

The ABA Tort Trial and Insurance Practice Section and the Section of Civil Rights and Social Justice co-sponsored the resolution.

This story was originally published in the October-November 2023 issue of the ABA Journal under the headline: “Forum Fixing: ‘Judge shopping’ in federal courts should end, resolution says.”

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