The right loves far-flung shopping trips — for judges and venues

August 1, 2023 6:00 am

Abortion foes went judge shopping and found an ally in Judge Matthew Kacsmaryk, who banned the long-ago approved abortion drug. Photo illustration by Anna Moneymaker/Getty Images.

Whether it’s swimwear and summer vacation apparel now, back-to-school supplies this month or Christmas, Americans love to shop: brick-and-mortar, online, you name it.

But another form of shopping is less benign. It consists of right-wingers and fellow traveler Republican lawyers shopping around for MAGA judges who will predictably issue favorable rulings on their behalf.

The latest manifestation of this practice, which Republicans have elevated to an art, or perhaps a malevolent science, occurred recently in Louisiana, where a federal judge shut down government attempts to curb dangerous disinformation about COVID-19 vaccines and other health-related matters.

The ruling was made in a lawsuit brought by the Republican attorneys general of Missouri and Louisiana before a hand-picked jurist, Terry Doughty, who was appointed by former President Donald Trump. 

The attorneys general went shopping for a friendly judge, and they found one. 

Exercising little doubt, Doughty made a sweeping ruling in favor of his right-wing pals. That outcome was as predictable as Mardi Gras is raucous — as was the ensuing appellate court ruling blocking it from going into effect, at least for the time being, pending further litigation.

This shop-til-you win litigation practice is not new. The idea is to file a lawsuit before a congenial jurist in an accommodating jurisdiction so you can obtain sweeping relief on a national scale, usually hampering or shuttering a practice or policy of the administration of the opposite party, or preventing enforcement of a statute, administrative regulation or executive initiative.

Democrats have used the tactic, too, but the MAGA crowd have deployed it with near-perfection in marquee litigation like the social media maneuver in Louisiana. 

Republican lawyers have been more cunning, shown more savy, and exercised less restraint than Democrats in shopping their way to success in these suits.

The strategy of seeking out a friendly face on the bench is not used much in state courts but over-used to the point of abuse in federal tribunals. 

In many state court systems — like here in Minnesota — judge shopping is much harder. A portion of judges serve on specialized courts, and cases can be shifted among judges during their progress, rendering them less susceptible to judge shopping. Additionally, in Minnesota and some other states, litigants can “remove” or dispense with a judge on their whim without cause or reason on one occasion, further making judge shopping infeasible.

The federal judiciary, on the other hand, allows a litigant to choose just about any jurisdiction in the country — regardless of its relationship to the  parties or the issues — to file a lawsuit that can result in a restrictive ruling that has nation-wide impact. And in the federal system, there is no process to “remove” a judge regardless of cause except by showing judicial bias, which is a high bar to clear.

Venue shopping, while not novel, has expanded dramatically due to the deep partisan chasm and the widely-divergent ideological views of the judges populating the federal courts, which has raised the stakes in finding for an accommodating jurist.

The MAGA lawyers are able to get away with it primarily in small, outlying areas where there are only a few judges — sometimes only a single jurist — which increases the likelihood that they will get the judge they want, who gives them the outcome they desire.

Although appellate courts — even conservative-leaning-ones — often scrap these rulings, as in the Trump Mar-a-Lago documents and the social media cases, the initial determinations by the shopped judges usually remain in place for quite a while. They also set the tone for the remainder of the litigation, and create a public mindset that favors the MAGA position in the lawsuit.

The recent Louisiana ruling on government  social media interaction is merely the most recent in this shopping spree syndrome.

Women are still reeling from a similar judge shopping episode this spring next door in Texas, where Judge Matthew Kacsmaryk, an unabashed abortion foe, issued a nationwide ruling halting availability of the widely-used abortion pill mifepristone on dubious grounds of its efficacy and safety — some two decades after its approval by federal health regulators. The case was dropped into his northern Texas courtroom because he was the only jurist assigned to hear cases there — an exquisite example of effective judge shopping. While the case is currently on appeal, regardless of the ultimate outcome, the damage has already been done.

And then there was the filing by Trump of a civil suit challenging the warrant and ensuing search of his Mar-a-Lago property for seizure of classified and sensitive national security documents, cagily brought before Judge Aileen Cannon, a last-minute Trump appointee who assumed her position less than two months before the Trump-instigated insurrection of January 6. The assignment of the case to her supposedly was made randomly by court officials, but the filing of the case in her judicial district — with only a handful of other judges — made her a prime candidate to get the case. 

Her well-known bungling of the case — bending over backwards to give Trump unprecedented preferential treatment — was even too much for the conservative 11th Circuit Court of Appeals, which reversed her on appeal.   

This abusive litigation behavior cannot be remedied by the multiple courts themselves, or by the divided Congress.

It would seem up to the U.S. Supreme Court, which exercises oversight of the federal courts, to step in and repair the problem. But that tribunal can’t even get their own house in order.

The investigation launched with great fanfare by Chief Justice John Roberts of the leak last year of the Dobbs anti-abortion opinion came up empty. 

The recent revelations of undisclosed largesse heaped upon the justices by outside influence-seekers has drawn nothing more than tepid side-stepping by the chief justice.

So, shopping for a solution to judge shopping remains elusive. 

One alternative might be for Democratic-leaning lawyers and litigants to do their own form of the strategy by bringing pre-emptive lawsuits in congenial jurisdictions before accommodating judges in what are known as declaratory judgment actions — cases asking courts to rule on disputed issues before the other side starts a parallel case in a more hostile forum. 

This essentially amounts to a race to the courthouse in which the fleetest lawyers and litigants have the best chances of winning.

As they say at the commencement of the Indianapolis 500 auto race: “Ladies and Gentlemen: Start your engines!”

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Marshall H. Tanick
Marshall H. Tanick

Marshall H. Tanick is a Twin Cities employment law attorney with the law firm of Meyer Njus Tanick.