Shopping for the Perfect Court

In the past few years, there’s been an explosion of nationwide injunctions coming from single-judge divisions in the federal court system. These judges were handpicked by the people filing these lawsuits.

You may have heard of one: U.S. District Judge Matthew Kacsmaryk. With Kacsmaryk’s rulings, Texas has been able to dictate federal discrimination guidance for transgender employees and commandeer the Biden administration’s immigration policies. He also tried to limit abortion access nationwide, issuing a ruling that would have removed the abortion drug mifepristone from shelves across the country.

In Sidebar’s seventh episode this season, we bring you the inside baseball of judge shopping. Federal rules govern how many judges are assigned to a court, and when a court has a division with only one judge at the helm, it becomes easier to know who will hear your case.

Special guests:

• Brook Gotberg, law professor at Brigham Young University
• Laura Coordes, law professor at Arizona State University
• Steve Vladeck, law professor at the University of Texas at Austin
• Jonas Anderson, law professor at the University of Utah

This episode was produced by Kirk McDaniel. Intro music by The Dead Pens.

Editorial staff is Ryan Abbott, Sean Duffy and Jamie Ross.

Chapters

• 0:00 Odds Are Odds
• 12:09 The Texas Two-Step

Transcript

(Intro music)

Kirk McDaniel: Welcome to Sidebar, a podcast by Courthouse News Service. I'm your host, Kirk McDaniel, and joining me is Kelsey Reichmann, Courthouse News' Supreme Court reporter extraordinaire. How's it going, Kelsey? 

Kelsey Reichmann: Hey, Kirk, wonderful to hear from you all the way down there in Texas. Although, as distant as Texas is geographically, it never really seems that far from the Supreme Court. 

KM: Yeah, our lawmakers here like to speak loudly, and they tend to speak even louder when we have a Democrat in the White House. Being a leader in national policy discussions is sort of our specialty here in the Lone Star State, but nice thing is there's never a dull moment. 

KR: Texas has been able to dictate federal discrimination guidance for transgender employees and commandeer the Biden administration's immigration policies. There was also that time a judge tried to limit abortion access nationwide. 

KM: I assume there must be some sort of a connection between this and what we're going to be discussing today. 

KR: You're catching on. All those rulings have one thing in common: Judge Matthew Kacsmaryk, and that's not a coincidence. In the past few years, there's been an explosion of nationwide injunctions coming from single-judge divisions, and those judges were handpicked by the people filing these lawsuits. 

KM: That name does ring a bell, so this is a Texas-specific issue? 

KR: No, judge shopping happens nationwide. Texas is, of course, a special case, but we'll get there. First, we have to set the scene for how it's possible to pick your judge. The federal court system is organized by geography. There are 94 district courts across the U.S. and in theory, each district hears lawsuits that connect to their location. 

KM: So, if I wanted to sue someone in federal court, I'd have to file in a district where I'm located? Is that right? 

KR: That's the idea. However, there's been some manipulation of this rule, known as forum shopping. Your lawsuit would have to be filed where you live or a place relevant to the complaint. Big companies that have multiple offices get more flexibility on where to file. Brook Gotberg, a law professor at Brigham Young University, explained to me how this works when a company files for bankruptcy. 

Brook Gotberg: The venue statute in the bankruptcy area is very permissive when it comes to filing location, so you can file in the place where your company is incorporated. You can file in the place where your principal place of business is, so typically that is your executive office. You can also file where you have the majority of your assets and if you have a subsidiary or a sister corporation or a parent corporation that could file in a particular jurisdiction, then you can follow them into bankruptcy, right. So, you have them file in that jurisdiction then you go and file in the same jurisdiction. 

KR: But sometimes even those options aren't enough. Laura Coordes, a law professor at Arizona State University, said companies are creating ties they don't already have to file in a specific district. 

Laura Coordes: That's really, I would say, kind of the most blatant type of forum shopping that we see is when you don't necessarily have those ties to begin with but you work to try to create ties. So, for example, in bankruptcy what we've seen is debtors creating subsidiaries, tiny, small shell companies, no assets, no real assets, no real employees, maybe a minor asset just to say it has something in New York or maybe in Delaware or in any other favorable venue where they don't previously have ties, and then filing that company, that little shell company or subsidiary company for bankruptcy and then using the bankruptcy venue statute, which allows you to file in a location where you have, where an affiliate has filed a case to bring the rest of the company into bankruptcy in that forum. So, it's like the tail wagging the dog a little bit, where you get the tiny affiliate in first and then you bring the rest of the company in. 

KR: The astute listener probably caught that there are more district courts than states, because while some states, like Alaska, only have one judicial district, others, like California, have multiple. Those districts get narrowed down even further into divisions. Take Texas, for example. The Lone Star State is divided into four district courts, then those districts are divided into 27 divisions. 

KM: I don't know if you've heard this, but Texas is a pretty big state. I assume all these divisions work to make sure that there are enough federal courthouses for each area in the state?

KR: Exactly, this is how we get into judge shopping. Federal rules govern how many judges are assigned to a district. Judges are then divided between the divisions. The fewer judges in a division, the easier it is to know which judge will be hearing your case. Steve Vladeck, a professor at the University of Texas School of Law, explains how this plays out in the context of the state's lawsuits against the Biden administration. 

Steve Vladeck: Although Texas has to be able to show that a district has venue, it doesn't have to show that a division has venue. And so, for example, if it wants to file in the Northern District, which includes everything from Dallas and Fort Worth all the way up to the Texas Panhandle, all it has to show is that the federal government is subject to venue anywhere in the Northern District, and then it can file in Dallas or Fort Worth or Wichita Falls or Lubbock or Amarillo. And the reason why that matters is because, under the Northern District's rules, if they file in Dallas, the case gets randomly assigned to one of 11 different judges, but if they file in Amarillo, they have a 100% chance of drawing a particular judge. In that case, Judge Matthew Kacsmaryk. 

KR: Texas has seven divisions, like Amarillo, where a single judge hears 100% of all new cases. 

KM: I've covered a handful of Texas lawsuits against the government. Just recently, the state sued the Department of Education over sex-based discrimination rules. That was filed in Amarillo, which means it will likely go before Judge Kacsmaryk. 

KR: Kacsmaryk actually brought a lot of national attention to judge shopping when he ruled in a challenge to mifepristone. An advocacy group for conservative doctors filed a lawsuit claiming that the FDA's decades-old approval of mifepristone should be revoked because the medication was unsafe. This was based on their own doctor's evidence and contradicted all major medical associations. The doctors claimed that they were harmed by the abortion drug because they might have to treat someone facing one of its very rare complications. There was little evidence any of these doctors ever treated one of these patients, and legal experts said the case should have been a non-starter. But Kacsmaryk ruled in the doctor's favor anyway, issuing a broad ruling that would have removed mifepristone from shelves nationwide. A national ruling with that impact would turn heads in any circumstance, but there was extra attention to Kacsmaryk’s ruling here because there was an appearance that he was intentionally chosen to oversee the conflict. The Alliance for Hippocratic Medicine, the group of conservative doctors who filed the case, incorporated in Amarillo shortly before filing their lawsuit against the FDA. Texas has filed eight of its 39 lawsuits against the Biden administration in Amarillo. 

KM: Wow, and these are all just in federal courts? 

KR: Yes, Steve Vladeck has tracked all 39 of these cases and found that four additional cases were filed in Galveston, giving them 100% chance that they'll be heard by Judge Jeffrey Vincent Brown, and eight more were filed in Victoria, where there was a 100% chance they'd be heard by Judge Drew Tipton. Tipton was recently moved to the Houston division and Victoria is no longer a single-judge division. 

SV: We've seen this pattern sort of over and over, where you know a majority, an overwhelming majority of these 39 cases have been filed somewhere where Texas has a really, really high chance of drawing not just a Republican appointee, but a specific Republican appointee. So much so, Kelsey, that of the 39 lawsuits Texas has filed, one has been assigned to a Democratic appointed district judge, and they actually tried to get out of that one. 

KM: What happened in that one case? 

KR: This was a challenge to the Central American immigration parole program. Texas filed it in January 2022, and at that time there was only a 95% chance of the case getting assigned to Kacsmaryk, since 5% of Amarillo's filings went to then-Chief Judge Barbara Lynn. 

SV: You know, odds are odds, so, as soon as they drew Judge Lynn, Texas filed a motion to relate that case to another case that was pending before Judge Kacsmaryk, to try to get it away from Judge Lynn. And Judge Lynn said not so fast, right, you didn't initially note this as a related case. I'm keeping this case and I'm moving it from Amarillo to Dallas. 

KM: So, Texas has filed a lot of these lawsuits in Amarillo, Galveston and Victoria. The state only has to show that it has venue in each of these districts. So, why is it out of the ordinary that the state has filed in these divisions? 

KR: I would ask why Texas hasn't been filing these lawsuits in Austin? Amarillo is almost 500 miles away from the capital, Galveston a little over 200 miles away, and Victoria is 130 miles away. You could say that Austin isn't in the Northern District and maybe the state wanted to file in that district. What about Dallas? Dallas is also in the Northern District and it's only about 200 miles from Austin. This isn't just a pattern that's been noted by academics. The Biden administration has tried to move three of these cases to other districts. During a transfer hearing in one, the government's lawyer called out Texas for not filing in Austin, saying, “At bottom, this case, more than we think any of the other cases that Texas and other plaintiffs have filed against the United States in cases involving national immigration policies and just national policies generally, has absolutely no connection to the Victoria Division. It has a connection to other places. It has a connection to Austin, which is where the Texas Capitol is.” 

KM: And what was Texas's response to that? 

KR: The state's lawyer said that the Biden administration was concerned with how the Texas attorney general was bringing his suit, but if the people of Texas were concerned, they could vote him out or a judge could just toss the suits. The Biden administration's transfer motions were denied and Judge Drew Tipton, the previous Victoria judge who transferred to Houston, took real offense to the DOJ's suggestion that the cases needed to be transferred because he was not impartial. 

SV: They were personally offended, if anything, by the motions to transfer. And I guess, Kelsey, what I find striking about that is it really, I think, misses what the objection is. The objection is not that these judges are somehow, you know, not acting in good faith or not discharging their duties as best as they can. The objection is that the appearance is that the plaintiffs are taking advantage of the ability to draw these judges, and indeed, I mean Kelsey, Texas has admitted on the record that they filed these lawsuits where they filed them to draw these judges. And so, you know, I think two things can be true. You can think that these judges are, you know, faithful, principled federal judges with all the integrity in the world, and still think that it looks bad when a frequent litigant like Texas keeps steering these kinds of lawsuits to them and nobody else. 

KM: Okay, Kelsey, I think this has been enough messin’ with Texas. Best to quit while you're ahead. Why would Texas, or any other plaintiff for that matter, want to file before a specific court or judge? 

KR: It's kind of an open secret, but federal law isn't applied the same in every courtroom. Take bankruptcy cases, which we talked about earlier. Since venue laws essentially allow companies to create jurisdiction, they can pick where they want to file a case based on how each district applies the law. Here's Brook Gotberg from BYU. 

BG: Those different circuits could have different substantive laws when it comes to bankruptcy, and so there may be situations where the filers say, you know, we want to bring this case and we anticipate needing to issue third-party releases, so let's go to New York because we know that third-party releases have been approved in New York. It's not so clear that they are approved in the Southern District of Texas, and maybe it's less clear in Delaware as well. So, that could be one situation. For example, Purdue Pharma was deliberately filed in the Southern District of New York in part to take advantage of that law, and that's before the Supreme Court right now. 

KR: OxyContin maker Purdue Pharma has been widely blamed for creating the opioid epidemic that has killed over 700,000 Americans, 300,000 of which died from prescription overdoses. Led by the Sackler family, Purdue marketed OxyContin to patients without regard for addiction concerns, and when Purdue's role in the epidemic began to emerge, the Sacklers moved over $10 billion of the company's profits into trust and holding companies in what the government says was a milking scheme to shield profits. The company says that 40% of these funds make up mandatory taxes. In 2019, Purdue faced thousands of lawsuits amounting to trillions of dollars, so Purdue filed for Chapter 11 bankruptcy. 

KM: And you recently covered the Purdue case at the Supreme Court, right? 

KR: Yes, the question before the justices has to do with non-consensual third-party releases for non-debtors. In the context of Purdue's case, this kind of release would give the Sackler family, who are non-debtors because only the company filed for bankruptcy, an immunity shield from future lawsuits. Purdue has agreed to a $6 billion settlement with a whole host of parties, from Native American tribes to states and cities to individuals harmed by the opioid epidemic, and these groups support the settlement, arguing that it would provide desperately needed assistance for victims. The Sacklers contributed $4.5 billion to the settlement, but they don't want to face additional liability, which is why they want to secure the third-party releases. Purdue is based in Connecticut, but that's not where it filed for bankruptcy. The company used a small subsidiary to file for Chapter 11 bankruptcy in the White Plains Division of New York. Here's Laura Coordes from Arizona State University. 

LC: They're a Connecticut-based company. They had, I think, some small subsidiaries based in New York, but not a lot of connections to White Plains. But they filed in White Plains, and they filed their subsidiaries in White Plains knowing that they would get a particular judge. And in fact, they knew they would get this particular judge because when they filed for bankruptcy they put the judge's name on the caption. 

KR: Judge Robert Drain ruled in favor of third-party releases in prior cases so Purdue filed in this division with the assumption that Drain would do so again, and he did. The rise of third-party releases is directly connected to court shopping. The insulation and roofing company Johns Manville set this line of cases in motion. If this sounds familiar, it's because the company was a leading manufacturer of asbestos-related products. Johns Manville found out about asbestos' connection to cancer long before the public, and it even suppressed a report confirming these filings. But of course, the cover-ups didn't last forever. Lawsuits over injuries eventually flooded the company. Here’s Brook Gotberg from BYU. 

BG: There's a long latency period associated with those medical issues, so exposure to asbestos might not result in cancer for 30, 40 years down the road. So, Johns Manville had filed for bankruptcy when it was still solvent because they didn't know how many of these claims were going to come down the road. They just knew that there was a whole lot of litigation. And so, they came up with this idea we're going to create a trust and we will release ourselves, we'll release our insurers, because the insurers, even though they're not part of the bankruptcy, don't want to be on the hook for finality purposes. They want to be able to say this is how much we're paying in and that's all we're paying in. And so, rather than litigate the issue, we'll have, as part of our plan to put together a pot of money for the victims who will show up down the road, these third-party releases for insurers. So, they did that in the plan and then Congress later sort of blessed that plan by passing the 524(g) to say, yes, we approve of it in that regard. 

KR: But this provision was specific to the asbestos cases and Purdue's cases involves opioids. 

KM: You mentioned that Judge Drain previously ruled in favor of third-party releases. 

KR: Yes, Purdue is certainly not the first bankruptcy case since Johns Manville to use these releases. If the Supreme Court were to bless non-consensual third-party releases from non-debtors, it would demonstrate how a handful of courts, hand-picked by plaintiffs, have shaped Chapter 11 bankruptcy law. But bankruptcy experts don't necessarily see this kind of policymaking by the courts as a negative. Here's Professor Laura Coordes from Arizona State University. 

LC: On some level, it's really hard to rely on Congress to adapt to these situations. I think one of the hallmarks of Chapter 11, and again, for better or worse, right, there's good aspects to this and maybe not so good aspects to it, but I think one of the hallmarks of Chapter 11 is creativity, and so, you know, somebody came up with the Texas two-step and third-party releases, right, and so, I think, courts, in some ways, they have to deal with these issues because they're arising in real time, and as much as we want Congress to pay attention to all of the bankruptcy issues that exist, it often does not, or when it does, things don't get anywhere just because the legislative process moves very slowly. 

KM: Stay with us, we'll be right back. 

Megan Butler: Hi, my name is Megan Butler. I'm a reporter for Courthouse News based in Atlanta, Georgia. Here, I've been covering some pretty significant cases going on at the Fulton County courthouse that have to do with the state's racketeering statute, the most high profile of them being against former President Donald Trump and 18 of his allies for engaging in a conspiracy to overturn his 2020 election defeat to now-President Joe Biden. While that trial is anticipated to begin in August, as prosecutors seek to have the trial begin before the presidential election that Trump is running in again, another RICO trial is currently taking over the courthouse, where Grammy Award-winning hip-hop artist Young Thug, whose real name is Jeffery Williams, is on trial for allegedly leading a street gang known as Young Slime Life. The judge has permitted the artist's lyrics to be used as evidence, drawing some criticism from First Amendment advocates who say the music lyrics should be protected free speech. To learn more about my coverage, go to courthousenews.com. Thank you. 

KM: Kind of seems like everything is working how it's supposed to, right? Congress makes the laws, courts interpret them and the Supreme Court says if they're right or not. 

KR: Yes, but it does have to be mentioned that the Supreme Court tried to tamp down on venue shopping a few years back and ended up igniting an infamous case of judge shopping in patent cases. Sorry, Kirk, but we have to go back to Texas for this one. 

KM: All right, but you're on thin ice. 

KR: So far, our focus has mainly been on plaintiffs seeking judges or districts that they think will benefit them, but certain judges have worked to cultivate a preference for filing in their courts. Jonas Anderson, a law professor at the University of Utah who specializes in patent law, told me how the Eastern District of Texas became a hotspot for patent law. 

Jonas Anderson: They wanted to have these patent cases, and the Eastern District of Texas is the prime example I'll use. They're a sleepy, rural, not many cases go to that district, and a specific judge, Judge Davis, in the 1990s, early 2000s, decided, you know what? We're going to become the patent court. We're going to attract patent cases to our court through procedural advantages we'll give to plaintiffs and we're not going to change the law. We'll judge the law the same, but the procedure will benefit the plaintiffs and so they'll want to come to the courthouse, and that was wildly successful. So, in 2015, I think over 40% of all patent cases in the country were tried before one single judge. So, that means just about half the cases were going to this one judge, which should suggest to everybody that there was an advantage to plaintiffs filing and getting that judge. And they all pretty quickly decided oh, we're going to follow along. 

KR: Then the Supreme Court got involved. In 2017, the court issued a ruling that limited where patent cases could be filed. The general venue statute that lets companies file lawsuits in multiple jurisdictions suddenly did not apply in patent cases. This meant that patent cases could only be filed where a company was incorporated. A year after the Supreme Court's ruling, the number of patent cases filed in the Eastern District dropped from 45 to 14%. In 2019 and 2020, the district only received about nine percent of cases. 

KM: So, the Supreme Court's ruling helped curb judge shopping in these cases, right? 

KR: For the Eastern District. A judge in the Western District jumped at the chance to slide into this role. 

KM: The Western District of Texas includes Austin, so that would kind of make sense. 

KR: It would if the cases were filed in Austin, but that's not what happened. Instead, Waco became the go-to venue for patent law. 

JA: All the patent cases until about a year ago were filed in Waco, right. Why? Because Waco assigned all the cases to Judge Albright, this judge that had these procedure rules that benefited plaintiffs, and so everyone filed in West Texas but in Waco. Then a lot of these cases were asking the judge to transfer the case that they had filed in Waco to Austin, right, the bigger town where a lot of the law firms are, and Judge Albright would transfer those cases and remain on the case. So, what they were doing is filing in Waco just so they could get Judge Albright then asking the judge to transfer the case they just filed there to another city that was more convenient for them, more convenient for their client, but they knew that the judge would keep the case. I think those are clear examples of judge shopping. 

KR: Judge Alan Albright was appointed to the bench in 2018 by President Donald Trump, so he came onto the bench as the Supreme Court made it harder to file patent cases in the Eastern District. Prior to his service on the bench, Albright worked on patent cases for decades in private practice, so he began soliciting companies to file in his district. He went on podcasts and spoke at conferences about all the advantages plaintiffs would gain by filing their cases in his courtroom. Albright wasn't conveying a preference for plaintiffs or defendants, but instead promoting his understanding of patent law. 

JA: If you are thinking about filing a case before Judge Albright or some random district in Montana that's never heard a patent case, even if you don't like his procedure rules, even if nothing about him appeals to you, his experience does appeal to you. He will do claim construction quicker than what happened in Montana. 

KM: He's saying I'm an expert in this area. I get it, unlike other judges who might not be as enthused by patent law. 

KR: Exactly. The problem, however, is that district courts were not created to specialize. Albright's self-promotion wasn't only noted by companies filing patent cases. It caught the attention of other judges, lawmakers and even Chief Justice John Roberts. Here's Steve Vladeck from the University of Texas Law School. 

SV: So, when Judge Albright tried to convert the Waco division of the Western District into basically a nationwide patent court, there was a bipartisan pushback against it. You know, both Democratic and Republican senators criticized it. Chief Justice Roberts mentioned it in his year-end report, which is a pretty big deal. And you know, perhaps not surprisingly, the Western District of Texas changed its case assignment rules to make that go away. 

KR: The top judge in the Western District created a random assignment order to evenly distribute the number of patent cases filed in Waco. 

KM: Isn't that like what the Judicial Conference was trying to do? 

KR: Yes, the policymaking body for the federal courts tried to implement a policy to randomize case assignment, but that rule didn't receive the warm welcome given to patent case reassignment. 

SV: I think it's really telling that the sort of the consensus that existed that it was a problem in that context doesn't exist in this context, even though, if anything, I think the problems are worse. 

KR: In March, the Judicial Conference unveiled its new policy that would require any case that bars or mandates state or federal actions to be randomly assigned in a district-wide selection process. This is how Judge Jeffrey Sutton, chief judge of the Sixth Circuit Court of Appeals, explained the rule. 

Jeffrey Sutton: This most recent change is not about subject matter anymore, it's about what the claims are trying to do, and if it is trying to enjoin or declare invalid a statewide law, statewide executive order, national law, national executive branch order, national rule, then it applies. So, for what it's worth, I would say it's consistent with the aims of some of the changes that were made in the patent arena because it's to all subject matter, and what's specific about it is paying attention to the type of relief sought, and I guess what I think is an elegant solution here is the current issue relates to nationwide injunctions or statewide injunctions. So, when it comes to those claims, it's a little hard to say you need one division of one state to handle it, since by definition it extends at a minimum throughout the state, possibly to the whole country. 

KR: While Sutton didn't know it at the time, the Judicial Conference's policy would become very controversial. I called in a favor from Courthouse News' Congress reporter Ben Weiss to sort through the chaos of the announcement. 

Ben Weiss: The Judicial Conference in March recommended that courts use random assignment when deciding how to approach new cases. That elicited a strong reaction from Republicans, who wrote a letter to the conference accusing them of trying to interfere with congressional authority to determine the structure of federal courts. That then forced the conference to clarify that actually it didn't intend for its recommendations to be considered binding. 

KR: Here's Senate Minority Leader Mitch McConnell. 

Mitch McConnell: My Democratic colleagues like to complain about judge shopping. Of course, the real complaint is that regular Americans are succeeding in opposing liberal policies in court. 

KR: Several Republican-appointed judges even publicly criticized the policy. Judge James Ho, who sits on the Fifth Circuit Court of Appeals, said judges are supposed to follow the laws enacted by Congress, not bend the rules in response to political pressure. Notably the Northern District of Texas, where Kacsmaryk presides, already said it would not be implementing any case randomization. Although the reaction threw cold water on the policy, it did spark an interest in legislation targeted at the issue, granted that both sides have a different view of what that problem is. 

BW: Both Democrats and Republicans appear open to using their congressional authority to clamp down on groups that try to game the court system to yield national policy results. So, the Democrats' bill would have Congress codify the Judicial Conference recommendations, which would require courts to assign new cases to judges at random by law. 

KR: Here's Senate Majority Leader Chuck Schumer, and yes, if you're wondering, that is his flip phone ringing. 

Chuck Schumer: As I've said before and I will say it again judge shopping jaundices our legal system, like few other abuses do. Picking and choosing a judge to get a predetermined outcome is the definition of unfairness, and Congress should fix this abuse with appropriate legislation. 

BW: But on the other hand, you have the Republican bill, which ignores the Judicial Conference's recommendations entirely and acts instead to sort of hamstring the concept of a national injunction. The Republican measure would confine a court injunction to the district in which it was decided and that would restrict the ruling to the parties involved in any future litigation or similar cases in that district. 

KR: Ben talked to several members of the Senate Judiciary Committee who showed interest in acting on judge shopping, and that's important because any legislation would likely come through the committee. But this Congress' track record hasn't inspired much faith that either one of these solutions is anywhere near becoming law. 

BW: Some people I spoke to were a little skeptical of these bills. I spoke to the Brookings Institution's Russell Wheeler, who told me that he's not really holding out hope for either of these measures passing this Congress, mainly because of partisanship. The way he put it was a bill requiring you to eat lunch every day wouldn't pass this Congress. When it comes down to brass tacks and comes time for lawmakers to actually litigate what a judge shopping bill might look like, the jury is still out. 

KR: The idea of trying to give a case an advantage by filing in a favorable court isn't new and it's not completely frowned upon. Here’s Brook Gotberg from BYU. 

BG: Not only can you choose, from the perspective of an attorney, you probably have an obligation to choose. You know if you're representing your client the best possible, you have to take that into account, recognizing the permissiveness of the venue's statute and the fact that there's different laws, you're gonna choose the venue with the law that is best for your client. 

KR: Experts say judge shopping is being called out as a problem now because of the political polarization that is seeped onto the federal bench. Here's Professor Steve Vladeck from the University of Texas School of Law. 

SV: Judge shopping is only going to be useful if there's actually real value in being able to pick a specific judge. And so, when you're, you know, when a single judge division is staffed by the most median judge in the country, that's not going to be a big deal. You're not going to see a huge effort by litigants to steer their cases to that judge, right, versus single judge divisions who are staffed by ideological outliers, judges who might not have even been confirmable as recently as 10 years ago. 

KR: That is compounded by an increase in nationwide injunctions. It creates the appearance that ideological groups can pick their favorite judge to dictate national policy. Whether or not a judge is actually impartial isn't so much the point as is the idea that the public will see them that way because of this manipulation of the system. And that hurts the credibility of not only that judge but the entire judicial branch, which relies entirely on public trust to enforce its rulings. 

KM: It appears our shopping spree has come to an end. Thank you, Kelsey, for your reporting, and thank you for listening. If you aren't quite ready to leave the courthouse, head on over to courthousenews.com, where you can peruse all the national and international legal news to your heart's desire. And if this episode has got you interested in court venues in a more literal sense, then make sure to tune into our next episode. Join Amanda Pampuro and Hillel Aron on a tour through the history and ideas that created the modern courthouse. For three decades, the government has spent billions to build and renovate 160 federal courthouses. These upgrades represent growing caseloads and changing needs for court staff, but also a renewed thirst for natural light and the need for unprecedented levels of security. This will be a field trip you won't wanna miss. See you then. 

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