Northeastern constitutional law experts Dan Urman and Jeremy Paul explain what judge shopping is — the practice of seeking a sympathetic judge to rule on an issue — why it’s currently in the news, and more.
It’s “completely unethical,” says Fox News legal analyst Gregg Jarrett, while Democratic Senate minority leader Chuck Schumer says it allows plaintiffs to “hijack and circumvent our federal judiciary.”
What is this problem that seemingly unites the left and the right?
Judge shopping.
To explore the topic, Northeastern Global News talked to university constitutional law experts Dan Urman and Jeremy Paul about what judge shopping is, why it’s currently in the news, and why it’s likely to remain contentious.
Both Urman and Paul say that judge shopping, and the closely related forum shopping, involves two issues.
At the most basic level, judge shopping is the practice of seeking a sympathetic judge to rule on an issue.
That often means forum shopping, or filing lawsuits in a specific federal district court where a more sympathetic judge is likely — or almost guaranteed: in the popular forum of the Northern District of Texas there is only one judge — to see the case.
“When I think about judge shopping, it involves a litigant looking for a particular judge,” Urman says. “Sometimes litigants are also looking for a particular ideological leaning of an appeals court to lock in a victory.”
So, for instance, a more liberal state’s federal court is more likely to have judges who are more liberal; a more conservative state’s federal court, correspondingly, is more likely to have conservative judges.
Republicans do better in the Fifth Circuit of Appeals, and Democrats do better in the First Circuit Court of Appeals, Urman notes.
But the practices of judge or forum shopping are connected to a larger issue of universal injunctions — or court orders that extend beyond the specific parties in a lawsuit and prevent the government from implementing or enforcing a law or policy against anyone.
“In other words, for lawsuits challenging President Trump’s reversal of President Obama’s Deferred Action for Childhood Arrivals cases, a universal injunction means it is not just this relief in one case involving one kid, but all DACA recipients — it’s the whole policy,” Urman explained.
Paul and Urman explain that judge shopping is absolutely a possible strategy for litigants unhappy with government policy.
“Why does it happen? It works,” Urman says. “Obtaining a universal injunction is like the HOV lane, or the fast lane, allowing an immediate opportunity to change or block a national policy.
It’s also naive to think that judges aren’t political actors — especially now, Paul says.
“It ought to be the case that whatever presidential political party appoints a particular judge, the judge is supposed to follow the law, and so you ought to get the same results in every court,” Paul says. “But that has never been true, and it’s way less true now — even than it ever was before — because the level of polarization in the country has increased.”
Yes.
“It happened against Obama. It happened against Trump. It happened against Biden, and it’s happening against Trump again,” Urman says.
Paul agrees.
“It certainly is not the case — despite what you might see on Fox News — that this is purely something that Democrats do,” Paul says. “In fact, Republicans have done it more successfully than Democrats.”
“What’s always going to be the case is the party who feels as though the president’s on their side and the courts are not, is going to be the one that wants to limit nationwide injunctions,” Paul continues.
There were 14 nationwide injunctions against Biden policies in four years. This February alone, judges issued 15 nationwide injunctions against Trump policies.
Urman additionally cites congressional inaction on lawmaking and the “judicialization of American politics,” as well as the end of the filibuster for judicial nominees, which allows judges to be confirmed in the Senate with only a simple majority rather than a supermajority.
“Congress isn’t stepping up, judges are filling the breach, and the judges themselves are more partisan and ideological,” Urman says. “Using the courts makes a lot of sense if you want to block a policy.”
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Probably not.
“I would not say it’s likely, but there is a chance that the Supreme Court could issue a ruling or send a message about the problem of universal injunctions,” Urman says. “I don’t think Congress has the willingness or ability to weigh in and fix this.”
Paul says it’s impossible to predict the current Congress, but while Republicans may favor legislation limiting nationwide injunctions, “you’re not going to get any Democrats to vote against the courts right now,” so legislation would likely not pass the Senate filibuster.
Ultimately, judge shopping will likely continue what Urman describes as the “judicialization of American politics.”