Federal judiciary's new policy aims to restrict judge shopping

A new policy by the federal judiciary will make it more difficult for litigants, including state attorneys general, to cherry-pick judges when they are challenging federal actions and seeking injunctive relief, sometimes nationwide.

Senior U.S. District Judge Robert J. Conrad of the Western District of North Carolina, who was chosen in March by Chief Justice John G. Roberts Jr. as the director of the administrative office of the U.S. Courts, said the new policy “promotes the impartiality of proceedings and bolsters confidence in the federal judiciary.”

“The random case-assignment policy deters judge-shopping and the assignment of cases based on the perceived merits or abilities of a particular judge,” he wrote in a statement. “It promotes the impartiality of proceedings and bolsters public confidence in the federal judiciary.”

Judge shopping has been especially prevalent during the past few years in lawsuits by Republican attorneys general and other right-leaning groups against the Biden administration. Such lawsuits are often filed in Texas, which has a system in which plaintiffs can essentially choose their judge by filing in a particular courthouse – because the state’s four divisions are divided in many cases into one-judge divisions.

Liberal groups and Democratic attorneys general often tried to choose favorable venues as well when filing lawsuits against the Trump administration, but they were not able to pick their district judge. California’s districts assign cases at random, meaning that a lawsuit filed in San Jose might be tried anywhere in the Northern District of California by any judge.

The Judicial Council of the United States did not release the policy in writing on Tuesday, but it appears to be borrowed from a July 2022 decision by the Western District of Texas to prevent U.S. District Judge Alan D. Albright, an appointee of President Donald Trump, from getting the lion’s share of the nation’s patent infringement lawsuits.

Western District of Texas Chief Judge Orlando L. Garcia’s order changed the system that allowed all plaintiffs who filed in Waco to get Albright as the judge in their case. Since then, the number of patent cases presided over by Albright dropped from 700 in 2022 to 207 cases last year.

Former U.S. District Judge Jeremy Fogel, executive director of the Berkeley Judicial Institute at UC Berkeley School of Law, said the new policy could have wider implications for cases beyond challenges to federal and state laws. The nationwide policy doesn’t apply to patent and other cases, but Fogel wrote in an email Wednesday that because the judicial conference rarely gets involved in local court governance, this week’s decision may prompt other courts to follow their lead.

“I think that the policy may have the indirect effect of prompting at least some district courts to discontinue such practices generally,” he wrote Wednesday.

“The direct effect of this policy will be that plaintiffs seeking to block state and federal statutes or official practices on policy grounds won’t be able to choose their judge by filing in a single-judge venue in which a sympathetic judge is certain to be assigned to the case,” Fogel added.

The impact of the policy change is unlikely to spur the dramatic shift that the Albright Rule did, because plaintiffs – whether private organizations or attorneys general – still will make strategic choices about where to file.

“Everybody is going to make judgments based on which forum they think is favorable,” said Bruce Green, a professor at Fordham University School of Law, in a phone interview Wednesday.

U.S. District Judge Matthew J. Kacsmaryk, a Trump appointee, is the only federal judge based in Amarillo, Texas. Attorney General Ken Paxton and right-leaning groups have filed multiple lawsuits against the Biden administration there, and he has ruled in their favor in cases involving the Federal Drug Administration’s approval of a drug used in abortions as well as cases involving the administration’s asylum and transgender policies.

While the Northern District of California’s policy does not allow plaintiffs to effectively choose their judges, every single active Article III judge in the venue was appointed by a Democratic president, along with nine of 11 senior judges.