The policy-making body of the federal judiciary is clamping down on the system that conservatives have successfully used in recent years to hamstring President Joe Biden’s agenda and other federal policies, including those concerning reproductive rights.

The new policy seeks to curb “judge-shopping,” the strategy where litigants strategically file lawsuits in courthouses where the cases will be guaranteed to be heard by judges perceived to be sympathetic to their arguments.

While the strategy has long been used in patent cases, there been a concerted uptick for politically charged, wide-reaching cases that have been filed in Texas by Republican state attorneys general or conservative, private-sector parties.

The lawsuit challenging the Food and Drug Administration’s approval of the medication abortion drug mifepristone was one such case; several Texas lawsuits seeking nationwide orders blocking Biden administration policies, including on immigration, gun safety or the environment, have been filed in such single-judge divisions as well.

The Judicial Conference of the United States announced Tuesday a new policy that will broaden the pool of judges who could be assigned to hear cases seeking state-wide or nationwide orders, making it more difficult to single out a particular judge, although it will still be possible to seek out a favorable pool of judges to hear cases.

Under the new policy, such cases seeking nationwide or state-wide orders will go into the lottery system used by the entire district. For instance, the abortion drug case was filed in the Amarillo Division of US District Court of the Northern District of Texas, where US District Judge Matthew Kacsmaryk – an appointee of Donald Trump who had previously worked for a religious liberty legal organization – is assigned to hear all cases under local rules.

Under the new policy, in the future, such a case would go through the random selection process for the entire district court – which has 11 active judges and five senior judges – thus significantly lowering the odds that it would be assigned to Kacsmaryk.

“The problem is not just that this allows plaintiffs to effectively choose their judge; it also undermines public faith in the integrity of the judiciary for the courts to stand idly by. Today’s news suggests that the federal judiciary, if somewhat belatedly, agrees,” said Steve Vladeck, CNN legal analyst and professor at the University of Texas School of Law, who has written in detail about these procedural developments.

US Circuit Judge Jeffrey Sutton, who was recently appointed the chair of the Judicial Conference’s executive committee, said the increasing prevalence of nationwide injunctions partially drove the change, and he noted that there were still benefits for cases with no such nationwide or state-wide impacts to be kept in local divisions.

“The current issue relates to nationwide injunctions or statewide injunctions,” Sutton said at a news conference Tuesday. “So when it comes to those claims, it’s a little bit hard to say you need one division of one state to handle it – since by definition, it extends at a minimum throughout the state and possibly to the whole country.”

Sutton said that in the coming days a memo would be circulated among district court across the country outlining the new policy and that there would likely be some ramp-up time before the policy’s implementation.


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