How Democrats could push back against GOP ‘judge shopping’

U.S. District Judge Matthew J. Kacsmaryk of Texas isn’t a household name, but he’s ended up ruling on important legal cases that affect the whole nation.

And that's not by accident.

The reason he’s been the judge presiding over numerous important federal cases is because he’s the focus of what is called “judge shopping.”

Judge shopping — different from “forum shopping,” which is when a lawyer is trying to get a case heard in a jurisdiction where they think they might get a favorable result — is the act of filing lawsuits in typically smaller geographic areas led by particular judges in hopes of getting a favorable result.

This seemingly happened with Kacsmaryk in the mifepristone abortion pill case, where he last month ordered a hold on federal approval of the drug. Judge shopping also was arguably performed by former President Donald Trump in the classified documents case where Trump was trying to delay the legal proceedings as the Justice Department investigated him taking classified documents to Mar-a-Lago, his post-presidential home in Florida.

Kacsmaryk, widely regarded as a conservative ideologue, became a federal judge in 2019 after then-President Trump nominated him in 2017.

Judge shopping is quite easy to do with Kacsmaryk because the vast majority of cases filed in his Northern District of Texas subdivision in Amarillo go to him.

“The Judge Kacsmaryk case is interesting because you’re basically assured you’ll get him,” says Jessica Levinson, a professor of law at Loyola Marymount University.

U.S. District Judge Aileen Cannon in Florida, a Trump nominee who last year made a favorable — and controversial — ruling that favored Trump, is another prime example, Levinson said.

Kacsmaryk’s office did not reply to a request for comment.

Plaintiffs can’t just file with Kacsmaryk because they want to. They must have a reason to be filing with him, such as they live in Texas or are an organization that operates in Texas. In the mifepristone case, some argue that the plaintiff, The Alliance for Hippocratic Medicine, made sure they had the ability to file with Kacsmaryk specifically by incorporating within his subdistrict only months before the lawsuit was filed.

“You see an advocacy organization incorporating in Texas, and I can’t imagine any other reason why they’d do that other than for the express purpose of getting in front of Judge Kacsmaryk,” says Alan Trammell, an associate professor of law at Washington and Lee University.

Potential ‘judge shopping’ pushback

Sen. Mazie Hirono (D-HI) has introduced a bill to push back against this practice of judge shopping.

The bill would make it so any civil lawsuit that would lead to what’s called a “nationwide injunction” — a ruling would affect the whole nation — would have to be heard by the U.S. District Court in Washington, D.C.

If that was what had happened in the mifepristone case, for example, then Kacsmaryk would not have ruled on the case at the federal district court level.

“Activist plaintiffs should not be able to hand-pick individual judges to set nationwide policy, which is why it’s critical we address the issue of judge shopping in our federal courts,” Hirono said in a statement.

U.S. Sen. U.S. Sen. Mazie Hirono (D-HI), wearing a face mask with drawings of late Justice Ruth Bader Ginsburg. Shawn Thew-Pool/Getty Images

It’s early, but so far, however, Hirono’s bill has not yet attracted a co-sponsor or received a hearing date.

Nationwide injunctions have become more common in recent years, Levinson said, and Trump was very effective at getting ideological judges, who will issue these kinds of rulings, placed on the federal bench. Levinson says the conservative legal movement seems to see this as a time to achieve as many of its goals as it can now that there are so many judges on the federal courts that are sympathetic to those goals.

“This is the moment. If you’re a conservative, I don’t know if it’s going to get better than this,” Levinson says. “This crop of conservative justices is just so much more conservative than anything that we’ve really seen in the past 75 or 100 years.”

Trump installed so many judges that a plaintiff might not even have to work very hard to get the desired result when filing this kind of suit, Trammell says, because there are now so many “zealots” on the federal bench. He says you could get a favorable ruling with “dumb luck” because of that.

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Evan Caminker, a professor of law at the University of Michigan, says he thinks Hirono’s bill would likely “minimize judge-shopping for national injunctions,” because these kinds of cases would all end up before the same district court in Washington, D.C.

That said, he can imagine conservatives might feel such a change would be too beneficial for liberals.

“I suspect some will oppose the bill simply because there happens to be a slight majority of Democratic-appointed judges in D.C. on both the trial and appellate levels, though of course that will change over time,” Caminker says.

Alternatively, Caminker says some have proposed sending these kinds of cases to a random district court. That would also be effective because the plaintiffs filing the lawsuit would have no idea where it was going to be heard.

Regardless of what happens with Hirono’s bill, it is clear the conservative legal movement has gone into hyperdrive trying to craft lawsuits and model legislation to accomplish their goals through courts.

Meanwhile, President Joe Biden’s own judicial nominees are back on track after long delays caused by the extended health-related absence of Sen. Dianne Feinstein (D-CA), whose vote was required on the Senate Judiciary Committee to advance the nominees.

Liberals consider it essential that Biden appoint as many left-leaning judges as possible between now and the 2024 election, when Democrats control both the White House and Senate.

Inside the Republican playbook for crushing press freedoms

A bill in Florida that’s supported by Gov. Ron DeSantis would make it easier to sue journalists for defamation, and press freedom advocates say such a change in the law would be extremely dangerous. The bill would seemingly violate a Supreme Court ruling that established these press protections, New York Times v. Sullivan, but it appears the bill may be an effort to get the Supreme Court to reconsider that decision and, as former President Trump once put it, “open up” libel laws.

The bill, HB 991, was introduced by Florida state Rep. Alex Andrade, a Republican. It would redefine “actual malice” to make it easier to win a defamation suit against a journalist. Actual malice is the term used to determine if a journalist knew what they were writing about a public figure was false or should have known it was false. The bill would also change who can be considered a “public figure” under the law.

“The New York Times v. Sullivan ‘actual malice’ rule applies when the plaintiff is a public official or a public figure, and the courts have defined the category of public figure pretty broadly,” Samantha Barbas, a law professor at the University at Buffalo who focuses on First Amendment law, told Raw Story.

Essentially, the bill would make it so fewer people are considered public figures, which means the Sullivan rules would apply to fewer cases, and the people who do qualify as public figures wouldn’t have to provide much evidence that the journalist was acting maliciously or irresponsibly. This change in the law wouldn’t only affect journalists, though.

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“The Sullivan actual malice rule affects all speakers, so ordinary citizens who want to comment on public officials or public affairs are protected by it if they make comments that are defamatory. We tend to think of Sullivan as a shield for the press, but really it affects everyone who wants to make commentary or criticism on public issues,” said Barbas, who recently wrote a book on the matter entitled “Actual Malice: Civil Rights and Freedom of the Press in New York Times v. Sullivan”.

So say you’re a Florida resident. You want to go to a town hall meeting and make some negative comments about your local representative. Feel free to do so — just know that without Sullivan in force, the lawmaker could potentially sue you for defamation, possibly successfully, just for insulting their character. The same could apply to posting negative comments about public figures on social media.

Prior to the Sullivan ruling in 1964, defamation lawsuits were often used against newspapers that were writing about the civil rights movement and racist activities in the Jim Crow South.

Post-Sullivan, those newspapers were much more protected from such lawsuits.

“In the late 1950s and early 1960s in the Jim Crow South there were a few judges and lawyers who came up with this very cynical theory of using defamation law to try to squelch northern newspapers from covering the civil rights struggle, voting rights abuses and things like that,” Lili Levi, a law professor at the University of Miami, told Raw Story. “They wanted to maintain the Jim Crow regime. That is the case that went up to the Supreme Court that we refer to as New York Times v. Sullivan.”

If this kind of legal shift did come to pass, such repressive tactics could be revived by people who want to stop the media from reporting on things they don’t like or want to keep hidden from the public eye.

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Barbas and Levi said they believe this bill was introduced to set up a case for the Supreme Court, because there would certainly be court cases regarding if it was constitutional. Justices Clarence Thomas and Neil Gorsuch have both expressed a desire to revisit the Sullivan rules.

U.S. Supreme Court (L-R) Associate Justice Sonia Sotomayor, Associate Justice Clarence Thomas and Chief Justice John Roberts pose for their official portrait at the East Conference Room of the Supreme Court building on October 7, 2022, in Washington, D.C. Alex Wong/Getty Images

“You might actually be able to get five justices to agree to revisiting and, even if not totally reversing, at least significantly truncating New York Times v. Sullivan protections,” Levi said. “The press, which by the way includes anyone who writes on Substack or Twitter or wherever, is going to potentially be liable for a significant amount of damages in a libel suit. That is one of the dangers of legislation like this, if it’s passed.”

Beyond what’s happening in Florida and the possibility of a Supreme Court case, it’s clear there’s a growing desire among Republicans nationwide to “open up” libel laws in a bid to shut down press freedoms.

Trump, who is running for president again while facing massive legal peril, famously called for that when he was running for president in 2016 and has repeated it multiple times. DeSantis, too, appears to support this kind of change as he considerschallenging Trump and launching his own 2024 presidential bid. Even a libertarian such as Sen. Mike Lee (R-UT) has called for changing the Sullivan rules to make it easier to sue journalists. Relatedly, DeSantis is also seemingly trying to prevent journalists from requesting information about where he travels.

“We’ve seen this widespread attack on New York Times v. Sullivan over the past five or six years … I don’t see why this wouldn’t spread to other conservative states while there’s this pervasive anti-media sentiment and all of this talk about needing to change Sullivan,” Barbas said. “This is really unprecedented, historically. I’ve looked at the criticism of Sullivan since 1964, and there’s always been an undercurrent of dissatisfaction and people saying Sullivan went too far, but I don’t think we’ve had a concerted attack like this in our history.”

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Levi said that if other states start to pass similar bills, that could make it more likely the Supreme Court would reconsider Sullivan. She said there would presumably be a lot of court cases going on around the country focusing on the constitutionality of these laws.

“I think if you have a bunch of statutes in a bunch of states that attempt to cut back, in one way or another, on protections for the press, some of those are going to end up being upheld by some courts, and they might become the occasion when [a Supreme Court review] could be granted,” Levi said.

Policies that are spearheaded by DeSantis in Florida, from the “Don’t Say Gay” bill to book bans, sometimes spread to other states, so it only seems logical that members of a party that’s constantly decrying the so-called “liberal media” would join this effort to change defamation laws in America. What happens in Florida doesn’t tend to stay in Florida.

“It’s quite possible this could spread to other states, which is also what makes it very dangerous,” Levi said.

One of the bill's co-sponsors, Florida state Rep. Mike Beltran (R), says he’s not sure if other states will adopt similar legislation.

However, he did make clear what he’d like to see happen.

“I think that it will likely be litigated and would be the vehicle to roll back much of the Supreme Court's dicta from NYT v. Sullivan, etc.,” Beltran told Raw Story. “The current case law finds no support in textualist or originalist principles and unfairly allows people to be defamed without redress."