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. Continue Reading...