Republicans take aim at new move by judiciary to curb ‘judge-shopping’

WASHINGTON — Senate Minority Leader Mitch McConnell, R-Ky., on Thursday criticized a move made by the federal judiciary to restrict the practice of “judge-shopping,” an approach conservative lawyers have recently used in high-profile cases in an effort to find a sympathetic jurist.

McConnell said on the Senate floor that the U.S. Judicial Conference, the policymaking body of the judiciary, was effectively siding with Democrats, who have complained about conservative groups and Republican attorneys general filing contentious lawsuits in single-judge divisions.

“This was an unforced error by the Judicial Conference,” McConnell said. “I hope they will reconsider.”

He suggested that district courts could resist applying the new policy.

“I hope district courts throughout the country will instead weigh what is best for their jurisdictions, not half-baked ‘guidance’ that just does Washington Democrats’ bidding,” he said. 

Recent examples of judge-shopping include several cases filed in Texas, including the conservative bid to overturn federal approval of the abortion pill mifepristone. That was filed in Amarillo, where it was guaranteed the judge would be Matthew Kacsmaryk, a former conservative legal activist appointed by then-President Donald Trump.

The new policy, announced this week, would ensure that any cases seeking to block state or federal policies in federal district courts would be assigned randomly from larger pools of judges.

Some conservative judges have already criticized the move. It was described as a “good idea” by Judge Jeffrey Sutton, a conservative judge on the 6th U.S. Circuit Court of Appeals who chairs the Judicial Conference’s executive committee.

McConnell complained that the move does not address a real cause of concern: that judges are increasingly issuing nationwide injunctions that block federal policies. This happened increasingly frequently during the Trump administration and has continued during the Biden administration.

The new policy will disproportionately benefit Democrats, McConnell said, although he did not explain why.

“This will have no practical effect in the venues favored by liberal activists, but Democrats are salivating at the possibility of shutting down access to justice in the venues favored by conservatives,” he added.

Under the new policy, the potential panel of judges in Democratic-leaning states would most likely be liberal, but the pool of judges in most Republican-states would likely be conservative.

The difference is that lawyers will not be able to pick a specific judge.