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U.S. District Judge Matthew Kacsmaryk, Texas
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The pivotal battle over the approval of the abortion pill Mifepristone by the Food and Drug Administration has sparked new accusations of “judge-shopping” by plaintiffs looking for a favorable audience for their litigation.
The legal battle over abortion pill has largely been fought in Amarillo Texas, where Matthew Kacsmaryk, a single district judge, is the federal court division.
Kacsmaryk was appointed to the federal bench in 2019 by former President Donald Trump. He previously worked for the Christian conservative legal organization First Liberty Institute and held socially conservative views regarding LGBTQ rights.
The lawsuit was filed in Amarillo by anti-abortion groups who wanted to cancel FDA’s approval of the drug. This virtually ensured that Kacsmaryk would be able to hear their case. Critics accuse the plaintiffs of attempting to have Kacsmaryk preside over the case, as he was more sympathetic to their arguments about the drug’s safety concerns.
Mary Ziegler, a law professor from the University of California, Davis, said that it is impossible to predict whether judges will act according to their biographies.
“If you’re the Alliance Defending Freedom,” the legal group representing some plaintiffs, “you’re going want someone like this.” [Kacsmaryk] Because your chances of success are better,” she stated.
CNBC did not receive a response from the Amarillo court to our request for comment.
Critics claim that the strategy of targeting single-judge sections damages the perception of judicial fairness. They claim plaintiffs are avoiding the normal process of cases being assigned randomly, which is primarily intended to “avoid judges shopping,” as one federal court explained.
Friday’s suspension of mifepristone approval by Kacsmaryk gave the Biden administration ample time to appeal. A federal judge also ordered that the FDA not restrict the availability of the pill in 17 states on Friday. This was contrary to the Texas judge’s ruling. The issue could be taken to the U.S. Supreme Court with a conservative majority of 6-3.
The Supreme Court’s decision last year to overturn Roe V. Wade will have huge implications for the legal status of the pill. The most common form is medication abortion in the U.S.
An attorney representing one of the plaintiffs refuted accusations of judge shopping.
Denise Harle (senior counsel for the Alliance Defending Freedom), stated that she is confident that any judge will look at the FDA regulations and determine what the FDA did. She spoke to Fox News in February. “That’s what I’m looking for, a fair trial, fair opportunity to present our arguments to court,” Denise Harle, senior counsel for the Alliance Defending Freedom, stated in February.
Harle also informed Fox that the Alliance for Hippocratic Medicine (an anti-abortion group represented by the Alliance Defending Freedom) is based out of Amarillo.
Kacsmaryk’s courthouse is now a popular destination for conservative legal causes. The judge has sided with Biden administration policies challenges repeatedly.
Similar accusations have been levelled at other judges. Trump was accused of choosing Florida federal Judge Aileen Cannon to be his judge, which he appointed when he filed a massive lawsuit in 2022 against Hillary Clinton, Cannon’s former political rival.
Instead, the case was assigned to Judge Donald Middlebrooks (an appointee of former President Bill Clinton). Middlebrooks dismissed the case.
Cannon was assigned to another Trump lawsuit a few months later. This one asked a judge for a “special master” to review documents that the FBI had seized from the resort home Mar-a-Lago. Some legal experts were surprised when Cannon granted Trump’s request.
It’s not unusual for litigants to seek the best environment to present their cases. This strategy is not partisan. Ziegler pointed out that a 2017 challenge against President Trump’s controversial travel ban was filed here.
Ziegler stated that forum shopping is “always kinda kind of an imperfect proxy for those seeking to find a sympathetic judge.” Ziegler noted that there are progressive judges in conservative countries and vice versa.
A plaintiff can target a specific judge by filing a lawsuit in a single judge division.
Steve Vladeck, a constitutional law expert, wrote in February that nine of the 27 divisions in Texas have a single judge, while 10 have two.
In a separate case, the Department of Justice requested a transfer to another federal court. They argued that the decision to “forum shop” to the Amarillo court “undermines public trust in the administration of justice” since the court “has absolutely no connection whatsoever to this dispute.” Kacsmaryk denied the request.
In February, another DOJ brief singled out Texas Attorney general Ken Paxton. He was accused of filing 18 of his 28 lawsuits in single-judge divisions against the Biden administration. Paxton’s office has defended the location of its cases and told CNN last month that the accusations by the Biden administration could “undermine the public’s faith in the legal system.”
Ziegler agreed with the view that even the appearances of judge shopping can undermine trust in the courts.
She stated that “when the public knows that they can choose an outcome by choosing a judge, it makes proving the legitimacy of the courts very difficult.”
