About F%$#ing Time

Federal Courts are finally moving to moving to shut down to judge shopping, a process, particularly favored by right wing legal activists, of arranging the filing to guarantee that the case finds its way to a particularly deranged judge:

This took way too long, but it appears that Supreme Court Chief Justice John Roberts and the Judicial Conference have finally decided to crack down on the serious problem of judicial shopping in the federal courts. They’ve set a new policy that will hopefully result in a more random allocation of cases to judges.

Jurisdiction shopping has been a problem for quite some time. You could argue that the creation of the Court of Appeals for the Federal Circuit (CAFC) was a response to patent litigation that involved repeated jurisdiction shopping. Of course, rather than fixing the underlying problem, they just set up a single appeals court that would hear all patent cases, which resulted in a weird sort of “judicial capture” of the Federal Circuit.

And, rather than fix it, the judicial shopping just shifted a bit after CAFC was created. Specific district courts, initially in East Texas (first Marshall, then Tyler), established themselves as patent-friendly court jurisdictions, leading to all sorts of shenanigans. This included frequent patent litigants buying a skating rink and a literal bull to ingratiate themselves with the judges and juries. The Supreme Court tried to put a stop to this, though it took a few tries to sorta get it to work.

………

And, by then, we saw that this kind of judicial shopping was happening beyond just the patent realm. Over and over again we’ve seen cases — especially cases involving culture war or politically charged topics — being filed in courts with just a single, or a very small number of judges, hoping to get one of the batshit crazy judges who will bless anything. Indeed, there are now a few judges, such as Terry Doughty, Matthew Kacsmaryk, and Aileen Cannon, whose names regularly show up in discussions about judicial shopping.

It’s becoming bigger and bigger news as the public is learning more and more about this type of judicial shopping, which undermines respect in the rule of law, as well as respect of the judicial system itself.

So, now, finally, years later, the Judicial Conference has said it’s going to start making a change. In certain types of cases, they will be randomly assigned to judges across the entire district, rather than limiting judicial assignments just to the specific court where the case was filed. This will increase (sometimes significantly) the pool of judges who might be assigned the case:

The Judicial Conference of the United States has strengthened the policy governing random case assignment, limiting the ability of litigants to effectively choose judges in certain cases by where they file a lawsuit.

The policy addresses all civil actions that seek to bar or mandate state or federal actions, “whether by declaratory judgment and/or any form of injunctive relief.” In such cases, judges would be assigned through a district-wide random selection process.

The key here is the “district-wide” random selection, as opposed to just in the specific court within that district.

It's good that the Judicial Conference is addressing this, but it's clear that self-regulation does not work.

Under the Constitution, Congress has wide ranging authority to supervise how the courts conduct their business, and the court cannot be trusted to police it self.  (**cough** Clarence Thomas **cough** **cough** Samuel Alito **cough)