CALIFORNIA FOCUS
FOR RELEASE: TUESDAY, JULY 11, 2023, OR THEREAFTER
BY THOMAS D. ELIAS
“JUDGE
SHOPPING CARRIED TO HARMFUL NEW EXTREMES”
Judge-shopping
is commonplace in American courts, lawyers constantly trying to get their cases
heard by judges they consider predisposed to rule their way.
But it
has been carried to new extremes this spring, in at least two cases with the
potential to affect millions of lives and potential lives.
When one
district judge ordered the federal 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 this 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 ought
to be able to expect from federal judges with lifetime appointments. It was no
accident these cases were brought in the legal backwaters of Amarillo, Tex. and
Spokane, Wash., where the two ideologically opposed judges preside.
But let’s
first take a look at the general practice of judge shopping, which by all
rights should be outlawed, as judges in all cases ideally should be chosen as
randomly as possible.
It’s become so accepted that now judges have begun to
try it on each other. During the spring, the trend reached a new extreme.
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, son of former
longtime Democratic Congressman Alan Lowenthal of 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 jurist most likely to help them.
Lawyers for the anti-abortion, 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, sex toys and personal
letters with sexual content – makes shipping mifepristone illegal no matter its
record of safety or what the FDA might say about it.
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. But the American people got confusion, not justice or
clarity, and it remains to be seen how this will be resolved. For sure, the
Republican-controlled House 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, both 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.
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