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Thomas Elias: Judge-shopping is a problem that will only get worse

July 11, 2023

Judge-shopping is commonplace in American courts, with lawyers constantly trying to get their cases heard by judges they consider predisposed to rule their way.

It was carried to new extremes this spring, though, in at least two cases with the potential to affect millions of current and future lives. When one district judge ordered the U.S. Food and Drug Administration to withdraw its approval of the orally-taken abortion drug mifepristone and another ruled that the drug must be kept available in 17 states that sued for it in his court, there was no doubt about the judge-shopping in play.

Both courts lacked any semblance of the fairness and objectivity that citizens should be able to expect from federal judges with lifetime appointments. It was no accident that these cases were brought in the legal backwaters of Amarillo, Texas, and Spokane, Washington, where the two ideologically opposed judges preside.

Let’s first take a look at the general practice of judge shopping, though, which by all rights should be outlawed, as judges in all cases ideally should be chosen as randomly as possible. The practice has become so accepted that now judges have begun to try it on each other. The trend reached another new extreme, also this past spring.

In March, Patrick Connolly, a conservative state court judge in Los Angeles, asked another court to disqualify fellow Judge Daniel Lowenthal from presiding over the sentencing of a convicted cop killer. The reason: A belief that Lowenthal, the son of former longtime U.S. Rep. Alan Lowenthal, D-Long Beach, is too sympathetic to criminals.

Connolly, a former deputy district attorney, prosecuted killer Justin Flint in 2007 for felony murder in the death of a sheriff’s deputy gunned down in her driveway during an attempted robbery.

Connolly objected to a Facebook post from Lowenthal advocating for police to be trained in “civil rights, civil liberties and … (to) understand past inequities and oppression…” that allegedly influence some crimes today. Lowenthal denied any prejudice in the case and ultimately fended off Connolly’s bid to disqualify him.

If judges can try to get colleagues disqualified because of alleged prior prejudices that affect only one person’s fate, it cannot be surprising that lawyers in wider-ranging cases carefully seek out precisely the jurists most likely to help them.

Lawyers for the antiabortion, Roman Catholic-aligned Alliance Defending Freedom did just this when seeking to reverse the more-than-20-year-old approval of mifepristone for use in pharmaceutically-induced abortions.

It’s unknown if those lawyers began by speaking with Amarillo’s Judge Matthew Kacsmaryk, but his background includes four years as deputy general counsel of First Liberties Institute, a conservative Christian legal group that has long opposed abortion. Kacsmaryk was among Republican ex-President Donald Trump’s first judicial appointees in early 2017.

So no one should have been surprised when Kacsmaryk ruled that the 1873 Comstock Act — mostly aimed against vice, but also containing a clause criminalizing the mailing of obscenity, contraceptives, abortifacients (abortion-inducing substances), sex toys and personal letters with sexual content — makes shipping mifepristone illegal no matter what its record of safety is or what the FDA says about it.

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It was equally obvious to attorneys general of 17 states including Illinois, Pennsylvania and Michigan — but oddly not California — that they would get the opposite sort of ruling if they went before federal Judge Thomas Rice in Spokane, who tried to assure access to the abortion drug in those states and the District of Columbia. Rice, a former federal prosecutor, was appointed by Democratic ex-President Barack Obama in 2011 and developed a moderately liberal reputation on the bench.

In each venue, the plaintiffs got just what they wanted. The American people got confusion, though, not justice or clarity, and how this will be resolved remains to be seen. For sure, the Republican-controlled U.S. House of Representatives shows no inclination to update the 152-year-old Comstock Act, mostly designed to limit damage from snake-oil salesmen who traveled widely during the late 19th century.

What’s clear from all this action, in federal and state courts, is that judge-shopping is a dangerous practice likely to continue as long as judges are appointed for their ideology, not their legal acumen. It’s likely only to become more common and destructive so long as the court system stays as it is today.

Reach Thomas Elias at [email protected].

Orange County Register

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Thomas Elias: Judge-shopping is a problem that will only get worse

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