Annual Meeting

'Judge shopping' in federal courts should end, House urges

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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 on Monday at the ABA Annual Meeting in Denver.

Coming after accusations of “judge shopping” in high-profile, politically charged cases, Resolution 521, sponsored by the Litigation Section, 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 by picking 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 goes.”

As of 2018, 55 of the 94 federal district courts are divided by geography and “at least 35 of the 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 the courts are in the best position to solve this problem, and we think they should.”

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

Plaintiffs challenging Biden 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, dozens of patent owners filed cases with nationwide impact in 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.

Follow along with the ABA Journal’s coverage of the 2023 ABA Annual Meeting here.

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 put in motion how that district changed its rules itself,” Pulgram said.

But judge shopping has not only occurred in patent cases. An amicus brief in the application of United States v. Texas and Louisiana detailed 19 instances where Texas filed challenges to federal law in federal courts in 2021 and 2022. Of those, 18 were assigned to a district judge appointed by a president of the opposite political party from the administration that promoted the policy or law being challenged; in addition, 15 of the 18 cases were filed in either a single-judge division or a two-judge division.

The Tort, Trial and Insurance Practice Section and the Civil Rights and Social Justice Section cosponsored the resolution.

See also: “Federal judge warns law firm that ‘judge shopping ain’t a thing here’” “Meet the Texas judge who is a favorite of conservatives in hot-button lawsuits, including abortion-pill litigation”

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