The pivotal fight over the Food and Drug Administration’s approval of the mifepristone abortion pill sparked latest accusations of “judge shopping” from plaintiffs looking for a sympathetic audience for his or her litigation.
The legal battle over the abortion pill was fought largely in Amarillo, Texas, where the federal courthouse is situated just one District Judge Mateusz Kacsmaryk.
Kacsmaryk, appointed to the federal bench by former President Donald Trump in 2019, previously worked for the Christian conservative law group First Liberty Institute and espoused socially conservative views on LGBTQ rights and abortion.
By filing a lawsuit in Amarillo, the cadre of anti-abortion groups looking for to cancel the FDA’s approval of the drug virtually guaranteed that Kacsmaryk would hear their case. Critics accused the plaintiffs of taking the case to Kacsmaryk because he was seen as more sympathetic to their arguments that the drug, which was approved in 2000, raises serious safety concerns.
“We won’t all the time predict that judges will act on their biographies,” Mary Ziegler, a law professor at the University of California, Davis, told CNBC.
But “when you’re the Freedom Defense Alliance” – a legal group representing certain causes – “you’ll be wanting someone like [Kacsmaryk] because your probabilities will probably be higher,” she said.
The Amarillo court didn’t immediately reply to CNBC’s request for comment.
Critics argue that the strategy of targeting single-member departments harms perceptions of judicial justice. They argue that plaintiffs bypass the usual technique of randomly assigning cases – which is principally to “avoid buying judges”, as one federal court explain.
Kacsmaryk on Friday suspended the approval of Mifepristone, while giving the Biden administration time to appeal. On the same day, one other federal judge ordered the FDA not to limit the availability of the pill in 17 states, essentially contradicting the Texas judge’s ruling. The case could go to the U.S. Supreme Court, which has a conservative majority of 6 to three.
The ruling on the legal status of the pill could have huge ramifications across the country, including in states where abortion stays legal after the Supreme Court’s decision to overturn Roe v. Wade last 12 months. Medical abortion is the most typical type of abortion in the US
An attorney for certainly one of the plaintiffs dismissed the judge’s shopping allegations.
“We’re confident that any judge who looks at the FDA’s rules and what the FDA has actually done will rule for us,” said Denise Harle, senior counsel at Alliance Defending Freedom. Fox News in February. “That is what we’re searching for, only a fair trial, a good opportunity to present our arguments in court.”
Harle also told Fox that the Alliance for Hippocratic Medicine, an anti-abortion medical group represented by Alliance Defending Freedom, relies in Amarillo.
But Kacsmaryk’s court does supposedly grow to be the preferred venue for conservative legal causes. The judge has repeatedly advocated difficult the policies of the Biden administration.
Other judges made similar accusations. Trump has been accused of the judge looking for Florida federal judge Aileen Cannon, whom he appointed when he filed a sweeping lawsuit against his former political rival Hillary Clinton in Cannon’s division in 2022.
This case was as a substitute assigned to Justice Donald Middlebrooks, appointed by former President Bill Clinton. Middlebrooks turned it down.
But Cannon was inadvertently assigned to a different Trump trial months later, this time asking a judge to appoint a “special master” to review government documents that the FBI seized during a raid on the former president’s Mar-a-Lago vacation home in August. Cannon complied with Trump’s request, surprising legal experts of the time.
It just isn’t latest that litigants attempt to have their cases handled in the most favorable conditions. Strategy is not partisan either: Ziegler noted that in 2017, then-President Trump’s controversial travel ban was challenged Hawaii.
The sort of forum shopping is “all the time form of an imperfect proxy” for those searching for a sympathetic judge, Ziegler said. She noted that there are progressive judges in conservative states and vice versa.
But by filing a lawsuit in a single-person division, a plaintiff may more easily refer the case to a specific judge.
Constitutional law expert Steve Vladeck he wrote in February, “Of the 27 divisions in 4 county courts in Texas, nine have a single judge; 10 others have only two.”
In a separate case, brought before Kacsmaryk earlier this 12 months, the Department of Justice requested a transfer to a different federal court, to argue that the “forum shop” decision to the Amarillo court “undermines public confidence in the judiciary” because the court “has nothing to do with this dispute.” Kacsmaryk rejected this request.
One other DOJ short in February singled out Texas Attorney General Ken Paxton by charging the Republican official with filing 18 of his 28 lawsuits against the Biden administration in single-person divisions. Paxton’s office defended its decisions about where to file its cases, saying CNN last month that the Biden administration’s accusations threaten to “undermine public confidence in the legal system.”
Ziegler reiterated the view that even the emergence of judge purchases could undermine confidence in the courts.
“When the public knows you could order a rating by selecting a judge, it’s really hard to persuade the public that the courts are legal,” she said.