Plaintiffs in some high-stakes, high-profile cases have found that in some of the country’s federal courts, it’s not hard to cherry pick a sympathetic judge.
Such judge shopping, particularly in cases challenging abortion rights and immigration policy, has been drawing increasing scrutiny. Last month, the federal judiciary’s policymaking body called for colleagues to curb the practice by making the assignment of the biggest civil cases random in the 94 federal district courts. But in two courts in Texas, a favored venue for such challenges, judges said they would not implement the guidance and would continue business as usual.
Now, the Senate’s top Democrat and top Republican have decided Congress should step in. On Wednesday, the Senate majority leader, Chuck Schumer, and the minority leader, Mitch McConnell, each plan to introduce legislation that would alter how certain cases are assigned in the federal courts. Each says that the goal of their respective bills is to eradicate the pursuit of sympathetic judges by savvy litigants. But the bills take different tacks in trying to do that.
Senator Schumer’s bill tracks the guidance last month from the Judicial Conference, the federal judiciary’s policymaking body. It would end the most targeted form of judge shopping, where plaintiffs game a district’s case-assignment system by filing in a small division staffed by one or two judges.
A system in which plaintiffs get to choose their judge, Senator Schumer said in an interview, “perverts the system of justice, which is supposed to be straight down the middle.”
Senator McConnell’s bill does not address concerns about plaintiffs who strategically file in single-judge divisions. Instead, it seeks to curtail the power of a single district court judge to issue a nationwide injunction and block federal policy across the entire country. The bill would limit the scope of district-court rulings to the parties in the case, or similar parties within the borders of the district. If a federal judge found that a U.S. immigration policy were unconstitutional, for example, that decision would not, under Mr. McConnell’s bill, have any immediate effect outside the borders of the judge’s district. The McConnell bill also would set new limits on where litigants in patent cases and debtors seeking bankruptcy can file their cases.
