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Courts move to limit the practice of 'judge shopping'

AYESHA RASCOE, HOST:

The Supreme Court's decision to overturn Roe v. Wade is still reverberating even now, nearly two years later. There's all the controversy over in vitro fertilization, of course - also, questions over mifepristone, the drug used in medication abortions and, stemming from that, a change to the legal process. It's about what's called judge shopping. And Ian Millhiser joins us now to explain. He's a senior correspondent at Vox covering the Supreme Court. Thank you for joining us.

IAN MILLHISER: It's good to be here. Thank you so much.

RASCOE: OK, so explain the connection between mifepristone and this term judge shopping.

MILLHISER: Sure. So the judge who heard the mifepristone case originally and tried to ban the drug is a judge named Matthew Kacsmaryk. And Kacsmaryk - he was an anti-abortion litigator before he became a judge. He is very, very closely tied to the religious right. And the reason why he was the judge in this case is because he is the only federal judge in Amarillo, Texas. And the way that the judicial assignment rules are set up in Texas's federal courts - that means if you filed a case in Amarillo, you're guaranteed to get Matthew Kacsmaryk as your judge. And so these anti-abortion plaintiffs, they wanted to ban this drug. They went to Kacsmaryk. And now this case that's going to be heard by the Supreme Court later this month - you know, it's become a whole thing because they were able to handpick this judge who was already on their side.

RASCOE: And so when it comes to judge shopping, like, how do cases get assigned to federal judges? This has happened in other instances.

MILLHISER: So it has always been the case that lawyers will try to manipulate which judge hears their case as much as possible. What is different about this mifepristone case, and a lot of cases, is the fact that the federal judiciary is divided into 90-something different districts, and then in most of those districts, depending on the size of the court, when you file a lawsuit, it's just randomly assigned to any one of those judges. In some courts, including most of Texas's federal courts, they subdivide the districts into what are called divisions. And if you file in a particular division, you are guaranteed to get a judge from that division. Right-wing litigants have taken advantage of this by filing cases in Amarillo, because they know they'll get Matthew Kacsmaryk, and he is a very, very right-wing judge. Liberals have taken advantage of this as well. I don't know if there's any districts where, like, there's just one judge who's a liberal judge. But, like, the Northern District of California, for example, is a district with a lot of judges, but most of them are liberals, so liberals like to file cases there because they're likely to get a judge they want.

RASCOE: Are there some famous examples of this happening outside of the mifepristone case?

MILLHISER: I mean, there are a number of famous examples of this happening. Many of them involve Matthew Kacsmaryk. And then there's some other cases - like, there's a judge named Drew Tipton in South Texas who's known for having very right-wing views on immigration, and so a lot of immigration cases wind up in his courtroom. Lawyers have done this for a long time. Again, what is new is that they're taking advantage of these single-judge divisions where they can not just have one of a choice of judges, but, like, one guaranteed judge.

RASCOE: And so there's been a response to this very specific judge shopping, right?

MILLHISER: So the news here is that the Judicial Conference of the United States, which is an internal body within the federal judiciary that sets policy for all of the courts - they issued a new rule. What the new rule says is that if you file a case and you are asking to block either a federal policy or a state policy, then your case will be randomly assigned to a judge within the broader geographic district. And that's not going to eliminate people shopping around for the judges that they think are going to win. But what is not going to be allowed anymore under these rules is you're no longer going to be allowed to say, I want this one judge. This guy right here, he's going to be my judge.

RASCOE: That's Ian Millhiser of Vox. Thank you so much for joining us.

MILLHISER: Thank you. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Ayesha Rascoe is a White House correspondent for NPR. She is currently covering her third presidential administration. Rascoe's White House coverage has included a number of high profile foreign trips, including President Trump's 2019 summit with North Korean leader Kim Jong Un in Hanoi, Vietnam, and President Obama's final NATO summit in Warsaw, Poland in 2016. As a part of the White House team, she's also a regular on the NPR Politics Podcast.