Bloomberg Law
Aug. 21, 2023, 8:00 AM

‘Judge Shopping’ Will Only Get Easier Without Rule Changes

Rob Chesnut
Rob Chesnut
Bloomberg Law

We’d all like to think that justice is blind. The facts are the facts, and our judges, unbiased and wise, will resolve cases fairly and in accordance with the law of the land. Behold Lady Justice, blindfold in place symbolizing impartiality, her scales in perfect balance, with her sword drawn to enforce what is fair and right.

It’s a beautiful symbol, and for over two centuries—with some obvious exceptions—it has held up as an enduring image for Americans’ respect for our third branch.

However, the politicization of the judicial branch, combined with poorly conceived case assignment policies that reward judge shopping, have tarnished that image.

Of course justice isn’t blind; judges are human and biased. In an era where judges are too often appointed for their ideological position rather than their experience, Lady Justice is increasingly perceived with blindfold askew, thumb on scales, sword poking a party whose position is contrary to her strongly held personal beliefs.

Imagine if a litigant could survey the 670+ federal judges spread across our 94 judicial districts, and choose the judge whose professional experience, personal background, and judicial track record all suggest that the court might be predisposed to their position.

It doesn’t take too much creativity in these days of AI and big data to foresee the next big online shopping app for lawyers—they’ll call it JudgeShopper—that takes plaintiffs step-by-step through a variety of questions relating to their potential venues and legal theories.

The app would then produce an assignment desirability score for each potential federal judge (based on an individualized analysis of each judge’s personal background and past rulings) and their circuit.

Sound unethical? Duty bound to zealously represent your client, it would be malpractice not to use such a tool.

Interesting. But, of course, you can’t choose your judge when you file your case…or can you?

In fact, plaintiffs are increasingly targeting certain jurisdictions where they can be practically assured of getting a particular judge, due to the way that cases are assigned. Individual districts have a lot of flexibility in case assignment.

In some places, cases are assigned randomly across a district, making judge shopping impossible. But many districts are subdivided into geographic divisions, and divisions in rural areas may have only one or two judges who get all of the cases filed there.

According to a 2018 study by the Columbia Human Rights Law Review, at that time at least 81 divisions across 30 of our district courts had only one or two judges, making judge shopping relatively easy.

In other districts, courts have elected to assign certain types of cases (patent, trademark, criminal, civil) to particular judges, again giving plaintiffs advance knowledge of who will hear their case.

The politicization of the judicial branch has raised the stakes in the debate about judge shopping, as plaintiffs from all sides of the ideological spectrum have increasingly used the court system to seek nationwide injunctive relief against government action.

Judge shopping is particularly easy in cases that seek nationwide injunctive relief against the federal government, or multi-state attorney actions that give the plaintiffs wide latitude in choosing where to file.

For example, it’s no accident that a suit challenging the FDA’s long standing approval of the abortion drug mifepristone was filed earlier this year in the Amarillo division of the US District Court for the Northern District of Texas. There, all cases are assigned to Trump appointee Judge Matthew Kacsmaryk, who predictably issued an injunction against the government, and partially upheld by the Fifth Circuit last week. That injunction was subsequently stayed by the Supreme Court.

The mifepristone case is just one of many cases filed over the last 10 years cases involving nationwide or multi-state challenges to government action involving highly partisan issues such as immigration, transgender rights, the environment, firearms regulation, education, and employee rights.

Over and over, these cases are being filed in divisions that practically assure the plaintiffs of drawing a specific judge that appears to be ideologically inclined to their position. Private litigants have also sought out these judges.

In an era where Americans are sharply divided along partisan lines, challenging and emotional issues are often being decided not at the ballot box or in legislative chambers, but in the courtroom. It is critical, therefore, that we have confidence in how these cases are determined; judge shopping undermines that public confidence in the fairness of the judicial branch.

That’s why the American Bar Association’s House of Delegates recently adopted a resolution that “urges federal courts to eliminate case assignment mechanisms that predictably assign cases to a single U.S. District Court judge without random assignment.”

The Supreme Court is already under fire for its failure to adopt a comprehensive code of ethics, and now with the increased focus on judge shopping, the question remains—will the judicial branch implement practices to promote integrity and help restore public confidence at a time where so much of government is stymied by partisanship? Or will inaction push Congress to step in and impose judicial reform, setting up a potentially ugly separation of powers fight?

Rob Chesnut consults on legal and ethical issues and was formerly general counsel and chief ethics officer at Airbnb. He spent more than a decade as a Justice Department prosecutor.

To contact the editor responsible for this story: Jessie Kokrda Kamens at

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