ABA Finally Speaks Up About The Problem Of Judge Shopping
We've been writing about the problem of judge shopping" for years in a variety of contexts. While there used to be concerns about forum shopping," in which plaintiffs would seek out specific courts that were deemed more favorable (such as the Eastern District of Texas for patent troll cases), it got more ridiculous in recent years with deliberate judge shopping, where plaintiffs would file cases in districts with only one judge, knowing they'd get who they wanted.
We've seen concerns about judge shopping in different types of cases from the infamous Judge Alan Albright in Waco, Texas, to cases where the DOJ started to direct warrant requests away from judges who actually reviewed them with a critical eye. We've also seen it happening in a bunch of political cases lately, including the ridiculous Missouri v. Biden case. The Albright situation was so egregious, what with the judge literally going on a roadshow tour pitching companies on filing in his district, that Supreme Court Justice John Roberts had to weigh in on the issue.
But, still, no one's really fixed it.
Thankfully, even the American Bar Association is fed up. At its latest annual meeting, the ABA officially adopted a resolution saying that the issue needs to be fixed and fixed soon:
Federal judges should be assigned to cases randomly to prevent the appearance of litigants picking districts and judges offering the most likely path to victory, the House of Delegates agreed on Monday at the ABA Annual Meeting in Denver.
Coming after accusations of judge shopping" in high-profile, politically charged cases, Resolution 521, sponsored by the Litigation Section, aims to help support the legitimacy of our federal courts and the public's confidence in them," according to the report accompanying the resolution.
It's about the issue of forum-shopping by picking judges, in particular, judge shopping by picking divisions where there is only one judge sitting in that division," said Laurence Pulgram, a delegate from California representing the Litigation Section, in introducing the resolution. You go to division A, you get Judge X. That's the way it goes."
As supporters of this resolution correctly note, the current system significantly undermines belief in the legitimacy of the judiciary. And the judiciary has already taken plenty of hits lately. But this is a big one. As the article linked above notes:
As of 2018, 55 of the 94 federal district courts are divided by geography and at least 35 of the 55 divisions appear to have either a single district judge or two district judges assigned to each," according to the report accompanying the resolution.
The situation with Judge Albright was egregious, but it's happening all over:
But judge shopping has not only occurred in patent cases. An amicus brief in the application of United States v. Texas and Louisiana detailed 19 instances where Texas filed challenges to federal law in federal courts in 2021 and 2022. Of those, 18 were assigned to a district judge appointed by a president of the opposite political party from the administration that promoted the policy or law being challenged; in addition, 15 of the 18 cases were filed in either a single-judge division or a two-judge division.
While the ABA's resolution is welcome in calling more attention to this, none of that matters if the problem itself isn't fixed. And that means either the federal courts or Congress (or both) need to figure out a way to fix things. And I have little hope that that will actually happen.