Judge Shopping Policy Selectively Targets Political Lawsuits

The federal judiciary’s new policy to tackle judge shopping appears to miss the kinds of cases that inspired Chief Justice John Roberts to tackle the problem in the first place.

The Judicial Conference announced a policy March 12 “limiting the ability of litigants to effectively choose judges in certain cases.” The policy is described as randomizing how such suits are assigned by homing in on lawsuits that “seek to bar or mandate state or federal actions.”

The change would make it harder to hand-pick judges in hot-button cases targeting federal laws and regulations, like a recent suit filed in Amarillo, Texas, that challenged the Food and Drug Administration’s authorization of the abortion pill mifepristone, according to lawyers and academics.

But the policy doesn’t appear to target patent or bankruptcy litigation, two areas of the law where venue shopping has also come under criticism, lawyers said. Those cases don’t ask courts to target state or federal laws or regulations.

“This started in patent cases but migrated to the politically-charged cases and never looked back, apparently,” David Taylor, a former litigator who teaches patent law at SMU Dedman School of Law in Dallas, said in an email.

Judge shopping first cropped up as an issue in the context of patent litigation after tech industry titans and two senators complained that patent owners were filing suits in huge numbers in two specific venues in Texas. Those choices ensured a significant portion of the nation’s patent dockets would be handled by one of two jurists: Judge J. Rodney Gilstrap of the Eastern District in Marshall or Judge Alan Albright of the Western district in Waco.

Albright, a former patent litigator who joined the bench in 2018, was hearing “roughly 25% of all the patent litigation in the entire United States,” according to Sen. Thom Tillis (R-N.C.) and then-Sen. Pat Leahy (D-Vt.) , who in November 2021 urged Roberts to take action. The issue ultimately inspired the chief judge for the Western District of Texas to issue an order in July 2022 randomly distributing patent cases filed in Waco evenly among judges in the district, an order that some observers said was less effective in reducing Albright’s patent caseload than initial predictions would’ve suggested.

The Judicial Conference’s new policy, as it’s been described, would not serve as a national version of the Western District randomization order, or even address venue shopping in patent or bankruptcy cases, lawyers and one federal appeals court judge said.

“It’s pretty ironic that the area of law that triggered this discussion in the first place and that, as a quantitative matter, sees judge shopping happen way more frequently than any other area of law is excluded,” said Paul Gugliuzza, a professor at Temple University’s Beasley School of Law. Gugliuzza’s academic writing highlighting Albright’s patent docket put a spotlight on the issue.

The apparent focus on judge shopping in national injunction cases also “runs the risk of turning a principle—you shouldn’t get to choose the judge in your case—into a politically charged issue,” Gugliuzza said.

“It’s Republican attorneys general and right-leaning advocacy organizations that are engaged in judge shopping,” disproportionately, he said. Left leaning groups may “choose more favorable forums like California and Hawaii, but those aren’t single-judge divisions,” he said.

The apparent omission was also the subject of criticism from conservative Judge James Ho of the US Court of Appeals for the Fifth Circuit, who questioned the sincerity of the lawyers who’ve pushed the judiciary to address the issue of judge-shopping in political cases.

Those reformers should “start by examining the serious concerns that have been voiced about our Nation’s bankruptcy and patent dockets,” Ho said in a statement.

Separate Guidance

The Administrative Office of the US Courts noted that the policy will also be accompanied by separate guidance issued to each of the country’s district courts. That guidance “also will address case assignment practices in all types of civil litigation,” Charles Hall, a spokesman for the administrative office, said.

The exact shape of that guidance and whether it might expand beyond the policy, which has only been described in the Judicial Conference release, wasn’t immediately clear.

“Maybe the guidance will go further,” said Joshua Landau, senior counsel at the Computer and Communications Industry Association. “But based on the news release, it sounds like they did nothing in response to the concerns from Sens. Leahy and Tillis.”

“Issues of case assignment as they relate to bankruptcy courts remain under study,” Hall said. The effort to address judge shopping, which started in the patent space, “continues to evolve.”

Some attorneys, however, prefer a system where patent owners can bring suits in one-judge divisions with jurists who have technical know-how and interest in patent litigation, and patent-owner-side attorneys were critical of the Western District’s randomization order that targeted Albright.

Tom M. Melsheimer, managing partner at Winston & Strawn LLP’s Dallas office, said the Judicial Conference was wise not to nationalize the randomization of patent case assignments, instead focusing on political cases.

“They are a highly specialized area of the law, and many judges simply want nothing to do with those kind of cases,” Melsheimer said of patent litigation.