ABA Recommends Random Case Assignments to Avoid Judge Shopping for Political Advantage

DENVER — The American Bar Association is trying to stop the “judge shopping” that allows political advocacy organizations to file lawsuits in courts most likely to rule in their favor.

Commonly, state attorneys general and activists will sue in federal courts with one judge whose record of judgments favors the plaintiffs’ political orientation.

At least 55 of the nation’s 94 federal district courts are subdivided into geographic “divisions.” Thirty-five of the divisions have only one or two judges assigned to them.

The ABA’s House of Delegates approved a resolution this week during its annual meeting in Denver encouraging the judiciary to avoid case assignment methods that allow litigants to choose their preferred judges in cases that seek “to enjoin or mandate the enforcement of a state or federal law or regulation.”

The ABA’s Resolution 521 is essentially the same as legislation introduced in May by congressional Democrats that would require that any one judge has no more than a 25% chance of being assigned to a specific case in federal district courts.

In addition, Democratic senators last month called on the Judicial Conference to take measures to stop judge shopping. The Judicial Conference is the judiciary’s policymaking arm.

They were motivated partly by a recent high-profile case in Amarillo, Texas, in which a Trump-appointed judge suspended Food and Drug Administration approval of the abortion pills mifepristone at the request of a conservative advocacy group. The federal court in Amarillo is a single-judge division presided over by U.S. District Judge Matthew J. Kacsmaryk.

Before he was appointed as a federal judge, Kacsmaryk was a Christian legal activist who opposed abortion rights. The plaintiffs were the Alliance for Hippocratic Medicine, which claimed residency in Amarillo after incorporating in Texas months before suing.

In another example, patent owners often file infringement cases in Waco, Texas, after learning a local federal judge is favorable to the owners’ claims. The result is that nearly 25% of patent infringement cases with national impact now are filed in Waco.

The ABA recommends case assignment methods that randomly appoint judges throughout their federal district.

“Random assignment serves important functions in preserving and promoting public confidence in the judiciary,” the ABA resolution says.

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