An Effort to End ‘Judge-Shopping’ Turns Into a ‘Political Firestorm’

A policy meant to prevent plaintiffs from steering their cases to sympathetic judges has drawn widespread attention, with both Republicans and Democrats accusing each other of politicizing the judiciary.

When the Judicial Conference, the national policy-making body of the federal courts, announced last month that plaintiffs would no longer be able to engage in “judge-shopping” — choosing to file major lawsuits at courthouses where they could be sure that a sympathetic judge would hear them — the policy sounded like a done deal.

Instead, the policy turned out to be guidance, rather than a binding rule. Conservative politicians are encouraging judges to reject it, while Democrats are pushing to make the policy mandatory. And some Texas judges have stated that they will make up their own minds about what to do.

“It’s very unusual for a conference policy to become a political firestorm like this,” said Jeremy Fogel, a retired federal judge who served in the Northern District of California. “I think that is unprecedented.”

Mitch McConnell, the Senate minority leader, swiftly condemned the new policy, which would deprive conservative activists of a potent weapon in their legal arsenal, one that they have wielded with great success in rolling back abortion rights and some Biden administration policies.

“Democrats are salivating at the possibility of shutting down access to justice in the venues favored by conservatives,” he said on the Senate floor. Individual district courts, he noted in a letter to a chief judge in Kentucky, could choose to simply ignore the new policy.

And last week, Chief Judge David C. Godbey of the Northern District of Texas sent a letter that appeared to say his district would do exactly that. The judges of his district met on March 27, Judge Godbey wrote, and “the consensus was not to make any change to our case assignment process at this time.”