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Forum shopping happens, but has the Northern District of Texas gone too far?

By Anna Stolley Persky

August 1, 2024, 1:00 am CDT

Since being appointed to the bench in 2019, federal Judge Matthew Kacsmaryk, who sits in the U.S. District Court for the Northern District of Texas in Amarillo, has become known for rulings affecting efforts to ensure minors’ access to birth control and expand LGBTQ+ rights.

Recently, he’s been in the spotlight for a nationwide injunction suspending the federal approval for mifepristone, a medication described as an abortion pill because it allows a woman to terminate a pregnancy in its early stages. In June, a unanimous U.S. Supreme Court found that the plaintiffs who challenged the Food and Drug Administration’s loosening of how the drug could be prescribed lacked standing, keeping access to the drug available.

Also, in December 2022, Kacsmaryk blocked a nationwide effort to end an immigration program started during then-President Donald Trump’s administration that requires some asylum-seekers from Mexico to be sent back while their immigration cases are ongoing.

How does one judge end up handling so many high-profile cases? The answer is found in the way in which some federal courts distribute case assignments.

In most of the country’s 94 federal district courts, cases are assigned to judges randomly. But the Northern District of Texas assigns cases by where they get filed, allowing parties to choose their judge. The district has 11 judges and is split into seven divisions. While some divisions are large, others, like Amarillo, are notably small. Kacsmaryk takes the bulk of the cases in the Amarillo division.

Lawyers who practice in federal courts know that, and Kacsmaryk has become the judge of choice for conservative activist lawyers, says Alice Clapman, senior counsel at the Brennan Center for Justice at the New York University School of Law.

What’s happening in Texas is “forum shopping on steroids,” Clapman says. “It encourages gamesmanship and more extreme legal theories taking hold because plaintiffs can find and get completely receptive judges to make big policy decisions.”

But Josh Blackman, a constitutional law professor at the South Texas College of Law Houston and an adjunct scholar at the Cato Institute, says judge shopping is “as old as the federal courts,” and the real issue is the ability of a single judge to render a nationwide injunction.

Concerns about judge shopping got so noticeable that the Judicial Conference of the United States jumped into the question of case assignment in March, and Congress is looking into the issue.

“The concern, of course, is that people shouldn’t be able to pick a particular judge for his or her point of view,” says Judith Resnik, a constitutional law professor at Yale Law School and the founding director of the Arthur Liman Center for Public Interest Law.

Kacsmaryk is not the only judge considered reliably conservative in Texas’ smaller divisions, and activist litigants are preselecting their judges, with at least one nonprofit going so far as to incorporate in Amarillo to get venue, says Kevin Wagner, a lawyer and a political science professor who specializes in constitutional law at Florida Atlantic University in Boca Raton.

“The rules in the Northern District of Texas make forum shopping easier, and there seems little interest in the district to change,” Wagner says.

Kacsmaryk did not return two messages left at his chambers.

The 26-member Judicial Conference creates policy for the federal court system. By statute, the chief justice of the United States serves as its presiding officer. Senate Democrats, led by Majority Leader Chuck Schumer of New York, wrote to the Judicial Conference in July 2023 about their concerns over judge shopping and called on the conference to “address this problem and restore fairness to our federal judiciary.”

In September 2023, the Brennan Center for Justice proposed that the Committee on Rules of Practice and Procedure within the Administrative Office of the United States Courts adopt a rule under which cases involving potential injunctive relief beyond the district be automatically randomly assigned. The ABA also has endorsed random judge assignments.

In March, the Judicial Conference announced a new rule meant to curb forum shopping. A few days later, the conference released a revision, clarifying that the earlier publication was a recommendation, not a rule, according to the Washington Post.

Northern District of Texas judges rejected the recommendation. In a March 29 letter to Schumer, Chief Judge David C. Godbey wrote that the judges had met, and the “consensus was not to make any change to our case assignment process at this time.”

Godbey pointed out that under federal law, judges have a wide berth to decide how to assign cases.

Judge James Ho of the New Orleans-based 5th U.S. Circuit Court of Appeals, which includes Texas, said the Judicial Conference policy was the result of political pressure. “Judges are supposed to follow the laws enacted by Congress, not bend the rules in response to political pressure,” Ho said in a statement to Reuters.

Meanwhile, Republican senators also jumped into the fray. Senate Minority Leader Mitch McConnell, R-Ky.—joined by Sens. John Cornyn, R-Texas, and Thom Tillis, R-N.C.— sent a letter to Godbey saying that the Northern District of Texas should continue handling case assignments as it wants.

“It is your job to manage the caseload of your court according to the dictates of local circumstances and convention,” McConnell wrote. “We therefore hope and expect that you will continue to do what is in the interest of justice for litigants in your jurisdiction without regard to partisan battle in Washington, D.C.”

Both Schumer and McConnell introduced bills related to judge shopping, although McConnell’s proposed legislation focuses on the ability of judges to issue nationwide injunctions.

Interestingly, this issue has previously wrought bipartisan concern. In November 2021, Tillis and then-Sen. Patrick Leahy, D-Vt., wrote a letter to Chief Justice John Roberts asking the Judicial Conference to investigate the “extreme concentration” of patent cases before a single judge in Texas.

Clapman doesn’t think the conversation over case assignments and judge shopping is likely to go away. The Brennan Center for Justice has asked that the Judicial Conference amend the Federal Rules of Civil Procedure to turn the Judicial Conference’s policy into a more binding rule.

But Sean C. Timmons, a federal litigator in Houston, says federal judges in Texas are unlikely to cede their ability to have case assignments doled out as they see fit.

“Texas likes to be unique,” says Timmons, managing partner of Tully Rinckey. “Texas has this persona of independence, and things are going to be done differently here, and they like to keep that persona going.”

This story was originally published in the August-September 2024 issue of the ABA Journal under the headline: “Plenty of Opinions: Forum shopping happens, but has the Northern District of Texas gone too far?”