There is an effort underway to reform the federal judiciary in one particular aspect -- but it will not completely end the practice which spurred the reform, and already Republicans in Congress are pushing back by declaring that new laws must be passed instead of just a new rule from the judiciary. This isn't too surprising, since conservatives have had much better luck using the tactic to achieve the outcomes they desire in federal courts.

The practice is known as: "forum-shopping," or even more colloquially: "judge-shopping." If an organization wants to attack a law or policy in an attempt to get it declared unconstitutional and overturned, they seek out a plaintiff who happens to live in a judicial division that all but guarantees they'll get a very friendly federal judge to hear their case. This can lead to injunctions being handed down that affect not only the people in that district, but in the entire state or even the entire country. Rather than taking their chances with some random judge, one is pre-selected before filing the suit -- a judge who can be counted on to rule for their side.

To be fair, both conservative and liberal groups utilize this tactic to some degree. Liberal groups file cases in (for instance) Northern California, where all the way up to the appellate level they can count on very liberal judges hearing their case. Conservatives file in places like Texas, where the exact opposite is true. But conservatives are much better at the practice, which may be a result of the demographic makeup up of the country's voters. Rural judicial divisions tend to be very conservative while urban divisions tend to be liberal. But a division in a very rural area may only have one federal judge assigned to it (which virtually guarantees that he or she is going to be the one to hear a case filed there), while one-judge divisions that are wholly liberal are a lot rarer (there are few urban divisions with only a single federal judge, in other words, due to population density).

Here is a prominent and recent example of how this works (emphasis added, for the case name):

When anti-abortion activists sued the Food and Drug Administration in 2022 seeking to overturn the approval of the abortion drug mifepristone, they filed their suit in the federal court in Amarillo, Texas, where it was all but assured that the case would be heard by Judge Matthew J. Kacsmaryk, an outspoken opponent of abortion.

Judge Kacsmaryk, the sole federal judge in Amarillo, wound up agreeing with the plaintiffs that the drug was "unsafe." In his ruling, he invalidated the F.D.A.'s 23-year-old approval of the drug and opened a new front in the post-Dobbs reckoning over abortion rights.

Kacsmaryk handles 95 percent of all cases filed in Amarillo. So it's a pretty sure bet you'll get him sitting on the bench if you file a case there.

The federal judiciary is organized into circuits, districts, and divisions. Divisions are subcategories of districts. And as exhaustively outlined in an article in the Columbia Human Rights Law Review, there are at least 90 divisions where a single judge handled more than half the cases filed there. Eleven of them are in Texas. In one of them, in West Texas, a single federal judge has been hearing a full 25 percent of all patent cases filed nationwide.

So Tuesday, the policymaking body for the federal judiciary -- the Judicial Conference of the United States -- issued a new rule:

The conference said cases with statewide or national implications can no longer be automatically filed in single-judge divisions and assigned to the judges who preside there. Such divisions exist in rural parts of the country where courthouses are spaced very far apart.

District courts may continue to assign cases to a single-judge division if those cases don't seek to bar or mandate state or federal actions through declaratory judgment or injunctive relief, the judicial conference said. When random assignments are required, the case will be assigned to a judge within the same judicial district.

Even if successfully implemented, this judicial reform won't entirely end the practice of judge-shopping. After all, there are entire districts which lean heavily towards conservative judges and vice versa for liberal judges. Plaintiffs may not be able to select a single friendly judge (the way they have been able to), but they'll at least be rolling the dice with the odds still heavily in their favor of being assigned a judge who is at least closer to their side of the ideological spectrum. So conservatives will still go on filing cases in rural Texas while liberals do the same in San Francisco. But at least they won't be able to pick exactly the judge they want.

But even this effort to un-tilt the scales of justice so there's a little less blatant bias is generating pushback. While Senate Majority Leader Chuck Schumer hailed the announcement, Senate Minority Leader Mitch McConnell sent a letter out to chief judges nationwide urging them to just ignore the new rule altogether (emphasis in original):

In letters sent to about a dozen chief judges across the country, Senate Minority Leader Mitch McConnell (R-Ky.) -- joined by Republican Sens. John Cornyn (Tex.) and Thom Tillis (N.C.) -- urged the judges to continue their current case assignment practices, noting "Judicial Conference policy is not legislation."

. . .

"The practice of judge shopping has given MAGA-right plaintiffs the ability to hijack and circumvent our federal judiciary by targeting courts that would all but guarantee a handpicked MAGA-right judge who would rule in their favor," [Senate Majority Leader Charles E.] Schumer said in a statement praising the action by the judicial conference.

But McConnell, in his letter to the chief judges Thursday, wrote that neither Schumer nor the conference have the authority to tell the courts how to assign cases.

"It's not our place to opine on how best you should manage the caseload of your court. Neither is it Senator Schumer's place, for that matter," McConnell wrote.

"It is your job to manage the caseload of your court according to the dictates of local circumstances and convention," the letter continues. "We therefore hope and expect that you will continue to do what is in the interest of justice for litigants in your jurisdiction without regard to partisan battles in Washington, D.C. If at any time current law is insufficient to meet the needs of justice, you can be assured that Congress -- and not the Judicial Conference -- will make the relevant changes."

We'll see how this all plays out. It is unclear at this point whether the Judicial Conference has the ability to enforce their new rule or not. On the face of it, it sounds like they don't: "While the new policy takes effect immediately, how and when to put it into practice will be left to the district courts, said Judge Jeffrey Sutton, who chairs the Judicial Conference's executive committee." So what is to stop a district from deciding to ignore the new rule?

Perhaps McConnell is right -- perhaps a new law is needed. Democrats already have a proposal on the table that would go even further than the new rule announced this week:

In the days after the Texas mifepristone ruling, two Democrats in Congress introduced a bill that would have mandated random case assignments and restored a practice that was put in place between 1937 and 1976, in which any lawsuit challenging the constitutionality of a state or federal law was heard by a three-judge panel.

Senator Ron Wyden of Oregon, the bill's Senate sponsor, also called on the Judicial Conference to make that change. "No single judge should have the power to make sweeping decisions that could harm millions of Americans," he said. "If a decision will have national consequences, it should be heard by a panel of judges."

Stepping back from the current fray, Democrats in general should take a page from the Republican playbook. For decades Republicans used the state of the judiciary as hot-button issue on the campaign trail. They'd thunder about "activist judges" who were "unelected" and somehow had to be stopped. Supreme Court judicial picks were a big motivator for Republican voters in the presidential race.

Not so much on the liberal side of things, at least in the past. But the Supreme Court's Dobbs decision overturning Roe v. Wade has completely turned the tables. Now it is Democratic voters who are fired up about fighting back against judicial activism. Democrats have finally realized why Republicans played such hardball about the Supreme Court for so long.

Democrats should absolutely use this as a political issue. Point out the most egregious examples of conservative judge-shopping, for instance (beginning with that abortion drug ruling). Lean into Republicans' opposition to ending judge-shopping. Rip into the Supreme Court with all the fervor Republicans used to. Point out the ethical shortcomings of Justice Clarence Thomas every chance you get. Point out that only one side of the aisle is working to make the federal judiciary system fairer and more balanced and more ethical, while the other side fights against such efforts. The courts -- from the Supreme Court down -- can indeed be a potent political issue for Democrats, and they should capitalize on this opportunity from now until Election Day.

-- Chris Weigant

Follow Chris on Twitter: @ChrisWeigant