In recent years, we have seen some notorious examples of what is commonly called “judge shopping.”  In simple terms, judge shopping is when a party files a case in a particular way in a particular location to get a specific judge.  To understand how judge shopping happens, it is important to understand how the federal judiciary is organized.

At the highest level is the United States Supreme Court.  There is very limited ability to “justice shop.”  Merits cases are heard by the entire court.  In theory, by picking the trial court in which your case starts, you choose the “circuit justice” who will handle any emergency petition.  But if an emergency petition has any merit, the normal practice is to refer the petition to the entire court.  Even if a justice were to enter an order on an emergency petition, the other side could ask the rest of the court to reconsider that order.

At the next level is the Court of Appeals.  There are thirteen circuits, twelve of which cover certain geographical areas and one of which (the federal circuit) covers highly specialized cases like patent cases.   When a case is initially heard by the Court of Appeals, it is randomly assigned to a panel of three judges.  Such panels are composed of the “active” judges assigned to that circuit, “senior judges” (i.e. semi-retired judges who do not count against the number of active judges set by law for that court) who are willing to take cases in that circuit, and, usually, one or two district court judges from that circuit per argument session.  Simply put, parties have no control over which judges are assigned to the initial panel.  That does not mean that the plaintiff can’t get some advantage from filing in a district in a specific circuit.  The judges in the Ninth Circuit (mostly, the Pacific Coast states) are mostly liberal and the judges in the Fifth Circuit (Louisiana, Mississippi, and Texas) are mostly ultra-conservative.  So you have a better chance of drawing a liberal-majority panel in the Ninth Circuit and a better chance at drawing an ultra-conservative panel in the Fifth Circuit.  Additionally, after the initial panel decides a case, the losing party can ask for the case to be reheard by all of the “active” judges in the circuit (except in the Ninth which is so large that rehearing is done by an expanded panel rather than the entire court).  While rehearing by the entire court is rarely granted, having a favorable circuit makes it more likely that you will get rehearing and a favorable ruling on rehearing if you get a bad draw on the panel.

But when attorneys are talking about judge shopping, they are really talking about the district court (i.e. trial court) level where a single judge is assigned to the case.  Again putting to the side the special jurisdiction courts which are subject to review by the Federal Circuit, the country is divided into ninety-four districts.  Each state has at least one district.  A majority of the states and territories have only one district.   Twelve states (Arkansas, Indiana, Iowa, Kentucky, Michigan, Mississippi, Missouri, Ohio, Virginia, Washington, and West Virginia) have two districts.  Nine states (Alabama, Florida, Georgia, Illinois, Louisiana, North Carolina, Oklahoma, Pennsylvania, Tennessee) have three districts.  Three states (California, New York, and Texas) have four districts.   In each district, there are a set of number of “active judges” along with senior judges to handle cases.  Except for the some of the territories, there are several active judge positions in each of the districts (although some of them are currently vacant).

The ability to judge shop comes from the next feature of district courts.  Given the fact that most districts cover a rather large geographical areas, most districts have multiple courthouses spread around the districts.  Federal law creates “divisions” within these districts (i.e. the part of the district covered by that division) and assigns the location of a courthouse for that division.  However, federal law, while it does set the number of active judges per district does not set the number of judges assigned to each division.  Subject to space availability (and the desire of each of the judges), a new judge gets to choose which courthouse she wants to use for her chambers (i.e. office).  More importantly, for this topic, federal law delegates to the district courts the ability to set rules for the assignment of judges to cases, and that is where the mischief comes into play.

In some districts, including my district, the local rules provide for the random assignment of judges to cases.  While one of the three courthouses in my district has only one active judge officed in that location and one of the three courthouses only has a senior judge officed in that location, any of the judges can be assigned to a case in any division.  While the trial of the case will be heard in that courthouse (requiring the judge assigned to that case to use “visiting judge” chambers in that courthouse for the trial), most of the pretrial proceedings can (and are) taken up at the home courthouse of the judge.  In some districts, however, the division assignments of the judges determine who gets which case.  If only a single judge is assigned to a division, any case filed in that division will be assigned to that judge unless that judge recuses himself.  Especially in “political” cases involving multiple parties challenging a statute or an administrative action, it is easy to create a basis why any division in the entire country is an appropriate location for filing a case.  Thus, if a favorable judge is the sole judge to hear cases in a particular division and that division is in a favorable circuit (and there are enough extreme judges in favorable circuits that this will often be the case), a party can choose that judge as the judge on that case by filing in that division.   For that reason, the Amarillo Division of the Northern District of Texas is currently a favorite location for the filing of frivolous cases by conservative groups.

There is a remedy for this situation.  Congress could place some limitations on the local rules governing the assignment of cases to assure a more random assignment of cases.  For example, Congress could require that the local rules must make at least three judges (active or senior) available for assignment to cases within any given division with assignments within that division to be made randomly.  Such a solution is, of course, imperfect.  Given that federal judges have lifetime appointments and there are only so many active judge slots per district, there will be times when a district is stacked (particularly near the end of a two-term presidency) with judges who are more liberal or more conservative than most of the country especially in states which tend to support that administration so that both Senators are supportive of such appointments.  But while moderate is a relative term in this circumstance, a random assignment would at least give the other side a chance at drawing a moderate judge rather than guaranteeing a biased bench merely from the choice of filing location.