When Republicans set out to destroy the Affordable Care Act in a 2018 court case, they filed their litigation in the Northern District of Texas, and there was no great mystery as to why: GOP officials realized that by filing suit in this specific district, there was a good chance their case would end up before a notorious far-right judge who’d give them everything they wanted.
The tactic worked — which helps explain why the partisan strategy has been duplicated countless times.
Interested in undermining the Navy’s vaccine requirements? File your case with a judge who’ll rule the way you want. Eager to derail the Obama administration’s protections for immigrants? File your case with a judge who’ll rule the way you want. Are you a culture warrior interested in blocking access to a safe and effective abortion drug? File your case with a judge who’ll rule the way you want.
The tactic goes by different names. I’ve seen it referred to as “forum shopping,” “judge shopping,” “venue shopping,” and “court shopping,” but the phrases all mean the same thing: Instead of simply taking one’s chances in the judiciary, many litigants effectively try to hand-pick ideologically aligned jurists, by filing their cases in specific districts, in order to guarantee success before the process even begins in earnest.
Everyone knows that it happens. Everyone also knows that by some measures, the dependence on the strategy is getting worse. What everyone might not know is that many prominent policymakers have pushed desperately for reforms, and this week, the U.S. Judicial Conference — the federal judiciary’s policymaking body — took a constructive step on the issue. Politico reported:
[J]udges themselves have moved to crack down on that tactic by adopting a new policy that mandates that all federal suits aimed at invalidating a national policy or statute or a state law or executive order be randomly assigned among judges throughout the judicial district where the case is filed. … The change means that challenges to state or federal government policies or laws filed in any of the nation’s 94 federal judicial districts will be subject to random assignment among all judges accepting civil cases in those districts, rather than being retained in the particular geographic division where they are filed and assigned only to the judge or judges in that division.
While some details remain murky, including questions about enforcement mechanisms, the announcement certainly appeared to be a step in the right direction — though many Republicans didn’t quite see it that way.
NBC News reported that Senate Minority Leader Mitch McConnell was not at all pleased, and he delivered remarks on the chamber floor this week urging the judiciary to undo what they’ve done.
What’s more, the Kentucky Republican and his allies did more than just complain: McConnell and some other GOP senators sent letters to judges around the country this week, reminding them they have some discretion in how to proceed, and effectively urging them not to go along with the new reforms.
Nearly a half-century ago, Republican Sen. S. I. Hayakawa of California joked, in reference to the Panama Canal, “We stole it fair and square.”
The famous quote came to mind watching McConnell this week. The minority leader and his party have spent years rigging the federal judiciary — even effectively stealing a Supreme Court seat — precisely to create an advantage for conservative litigants. To make the system a bit fairer is to make the level field a bit more even.
Is it any wonder why Republican senators are complaining?
