This is Bloomberg Law with June Brusso from Bloomberg Radio. Judge shopping. The term is pretty much self explanatory, and it's come up repeatedly in recent years. In Texas As, Republican attorneys general and conservative litigants have filed challenges to Biden administration actions in divisions where one judge who's sympathetic
to their causes is automatically assigned all cases. A lot of attention has focused on Federal Judge Matthew Kesmark, a Trump appointee and former conservative Christian legal activist who hears all civil matters filed at his Amarillo, Texas courthouse. His decision to issue a nationwide injunction suspending approval of the abortion pilm if A pristone merited disapproval from many of the justices at oral arguments last week, including Conservative of Justice Neil Gorsuch.
We've had one might call it a rash of universal injunctions or vacatures in this case seems like a prime example of turning what could be a small lawsuit into a nationwide legislative assembly on an FDA rule or any other federal government action.
The federal judiciary's Administrative Arm approved a new policy last month aimed at curbing judge shopping by litigants who file lawsuits that have nationwide or statewide implications in single judge divisions, but just two days later, after a backlash from conservative senators, the conference issued a revision making it clear that the policy is just a recommendation and that they can't force
district courts to follow it. Joining me is Alan Trammel, a law professor at Washington and Lee Law School, tell us about judge shopping.
There's a difference between court shopping and judge shopping. So court shopping forum shopping more generally, is something that happens a lot. Lawyers and judges will often question whether that is a good practice, but in essence, it is part of a lawyer's responsibility to identify the court that is going to be most beneficial for a particular client's position that has been going on for a very very long time.
And usually when you're thinking about that, you're thinking about whether there is going to be circuit law that is going to be most favorable to a particular person's client. It's a really different beast when you're thinking about actually picking the specific judge, not just the court and the body of the law that are going to govern a particular issue. And so we see this in a number
of high profile situations. The myth of pristone litigation that ultimately led to oral arguments in the Supreme Court last week is really good example of that. You have challengers who are going not just to one specific circuit, not just to one specific district, but in essence choosing the very specific judge who at least in the first instance, is going to hear a challenge to a particular piece
of legislation or a governmental policy. And that again strikes a lot of people as a very very different beast.
Also, I mean you mentioned the mifipristone case and that Judge Matthew Kesmarrick, a Trump appointee formerly a conservative Christian legal activist involved in anti abortion cases, and he has issued major rulings blocking Biden administration policies in addition to the abortion pill.
That is correct, and it is no secret that Judge Kasmark is the judge whom conservative activists and conservative litigators want to get their cases in frontop. I don't think that it's any surprise that this policy is in large parts stemming from this really aggressive selection of judge Kesmark to hear these kinds of challenges. In theory, it applies more broadly set a minority leader. Mitch McConnell decribed this as targeted ad litigation by conservative causes and conservative activists.
But I think that there is a much broader problem, even if at this very specific snapshot in time, it is going to be felt most acutely in districts where there is a conservative judge who is hearing challenges by conservative litigators and activists.
Tell us about that broader problem.
It goes back to the difference between simply selecting the courts selecting the specific judge, because it does strike me as a difference in kind when you're selecting a court versus a judge, and the shoe can always be on
the other foot. I mean, that's the thing that we always have to remember is even if today it is conservative activists who are targeting a particular conservative judge and bringing their cases in front of that specific judge, if there is a Republican president and you have liberal activists who are trying to challenge a particular policy by Trump administration or another conservative president, then You've got to be wary of whether you're going to be in a situation
where progressives and liberals are going to be able to engage in this exact same kind of behavior that, if we zoom out, seems antithetical to the rule of law, which is supposed to be more neutral and not dependent on the specific judge hearing the case. It is true that there are not that many single judge districts where you have a progressive or a Democratic appointee the way that you have with AIG, for example, Judge Psmark right now.
But that can change. That can change through congressional action and just through the evolving nature of the way that the judicial vacant these are created.
What that brings to mind is that during the Trump administration, Republicans complained and now say, well, Democrats were doing the same thing. They were going to friendly districts in California.
Is it the same?
In some ways? It is different, because what you're dealing with here is not simply the phenomenon of progressive activists going to courts that tend to lean towards the left versus conservative activists going to courts that lean to the right. When you're thinking about what was going on during the
Trump administration. Yes, it is absolutely true that you had progressive lawyers and progressive clients who are trying to challenge various Trump administration policies early on that included the so called Muslim Ban, where the Trump administration was essentially denying entry into the United States by people from predominantly Muslim countries.
Having said that, even though progressive activists were going to the Ninth Circuit, there wasn't this phenomenon where you would have divisions within a particular district where there was a single progressive judge whom progressive activists and litigators were trying to target. They basically didn't exist. So it is a different in kind, and I think that it is much more severe when you're looking at what is going on right now, where again you have conservatives who can identify
a very specific judge in a particular division within one district. Again, that just doesn't really exist on the left.
So on March twelfth, the Judicial Conference, which is the policymaking body of the federal Judiciary, announced this new policy. Two days later, after getting pushed back, they revised it. But let's talk first about what the initial policy said that is.
In some point, it's difficult because they announced a policy, but they didn't give us really specific language to latch onto to figure out whether it in fact was going to comply with existing statutes or whether there was going to be any room for change.
Tell us about the broad outlines of the policy then.
So that was essentially saying that in districts where there are these separate divisions, that litigant is not going to be able to necessarily select the specific division, that the court is going to need to randomize the assignment of cases throughout the entire district. And so there's not going to be this possibility under the proposal for a litigant to go to a specific division within the district and
essentially handpick the judge. There's going to be some sort of random distribution of the cases throughout the district if the proposal goes into effect. Again, they are not trying to address the broader phenomenon of litigants being able to pick the districts and the circuits where they're litigating. So a circuit is going to embrace a number of states, and each circuit essentially develops its own interpretations of the Constitution.
And the various federal statutes that they apply, and there can be differences between the circuits until the Supreme Court resolves those differences. That's been a phenomenon that we've had since Congress designed the present organization of the Federal Court in eighteen ninety one. So none of this is super new. The phenomenon that the Judicial Conference was trying to address is when you have not just a district within a state, but even divisions within that and there is going to
be a single judge within that division. Now, that's a relatively rare phenomenon, and it's going to be even more rare that you can identify a very specific judge with a particular political bent who is going to be especially receptive to your case. So I don't want to say that it is a solution in search of a problem. It's not at all. But the very specific problem that
the Judicial Conference is addressing is pretty narrow. There are a whole host of other concerns with forum shopping that the Conference essentially said that it's not addressing in this particular proposal.
There was a backlash from conservative senators, including Minority Leader Mitch McConnell, who characterized this as an attempt to grab power from conservative jurists in isolated jurisdictions, and he said that it's up to Congress to decide how cases should be assigned to the lower courts.
Part of this, I think was geared at addressing the basic idea that somebody who is a plaintiff should be able to sue at home. Now, there are all sorts of doctrines that are going to limit that, but one of the things that Senator McConnell talked about was the Judicial Conferences proposal was going to limit access to justice, and that if I'm a plaintiff and I'm suing somebody who has harmed me here at home, then it shouldn't result in the case being sent to some far flung
place elsewhere in the district. And that point I think is generally well taken. What the Judicial Conference said in its clarification is, look, we're trying to train on the very specific phenomenon of challenging broadly applicable statutes broadly applicable
policies by hand selecting a very specific judge. In other words, they were trying to identify the very specific problems of challenges to nationwide policies or statutes, regulations, or otherwise when activists will go to a specific judge in one of these single judge divisions. They were trying trying to make clear that they were leading alone the normal process of litigation where you and I have a breach of contract and I'm suing in the place where we had formed
the contract or where the election breach happened. In other words, they were saying, in the mind run of cases, we are leaving well enough alone. We're really trying to home in on the specific problem of identifying a specific judge who's going to give a favorable nationwide ruling.
Coming up next.
A Texas district says it's not following the guidance I'm June Gross when you're listening to Bloomberg shopping for judges. It's come up repeatedly in recent years in Texas As. Republican attorneys general and conservative litigants have filed challenges to Biden administration policies in divisions where one judge who's sympathetic to their cause is automatically assigned all cases. Last month, the federal judiciary's administrative arm approved a new policy aimed
at curbing judge shopping by litigants. But two days later, after a backlash from Senate Republicans, the conference clarified that the new policy was just a recommendation. I've been talking to Professor Alan Trammell of the Washington and Lee Law School, So basically, in its revision, the conference said that this new policy was discretionary.
They did say that it was discretionary, and I think that that is in part to make sure that their policy is going to be consistent with the federal statute that says that the chief judge of a district is in charge of distributing cases to the judges within that district.
That was going to be my next question.
I was wondering whether you thought that the initial policy was within federal statutes or whether they were violating that statue you just mentioned.
There is a decent textual argument that the policy could have violated a federal statute. It could have worked an incursion on the chief judge's ability to assign cases as the chief judge does fit. I think that there is a better argument, which is that the policy and the federal statute are consistent. And again we need to see how the policy is actually crafted. We need to get
language in front of us. But I think that if the Judicial Conference is careful, they will craft the policy in a way that is not going to be inconsistent with the governing statutes. It's going to essentially find a way to address this particular problem without again working an in persion on the statutory authority that a chief judge has to assign cases. My view is that a chief judge is going to ignore this policy at his or
her own peril. I think that there is a good way of viewing this policy again, if it's put in the correct language as being consistent with the federal statute.
In a letter on Friday, the chief Judge of the Northern District of Texas said that the judges in his district met on Wednesday, quote, the consensus was not to make any change to our case assignment process at this time, so they decided not to follow the policy.
I don't know that they are not following the policy, because again, we don't really have hard and fast language in front of us. I think that there's going to be a lot of give and take, and I guess it is true that the Northern District seems to be conveyed that they are not interested in altering their behavior in any way whatsoever with respect to the assignment of cases.
But this is an iterative process. I suspect that the Judicial Conference is going to come back with more specific language, and at that point we will see whether courts are essentially coming their noses at the conference or if they are trying to find some sort of accommodation. Again, I think that there is a genuine concern here. It is small board. It is a small piece of a much larger puzzle with respect to access to justice and perceptions
of cherry picking particular courts or judges. But I don't think that the Judicial Conference has gone out too far on a limb here.
This judge Shopping didn't address patent litigation or bankruptcy cases exactly.
So Judge Hoe on the Fifth Circuit, which includes Texas, was essentially saying, look, you've addressed one tiny piece of the puzzle, But the bigger problem is not a single
judge division such as Judge Kesmark. It's the fact that you've got certain districts that have become magnets for patent litigation, bankruptcy litigation, and the light So the Eastern District of Texas, for example, has developed its own law on patent litigation, and so called patent trolls often flocked to the Eastern District of Texas because of the unique rules that have developed around patent litigation. I would agree that that is
a much bigger concern in the broader scheme. But just because the Judicial Conference has focused on one aspect of the problem, namely single judge divisions, doesn't mean that it can't also address some of these other problems. I can see the point from the perspective of the conservative blowback that this looks a little bit too cherry picked, that if you're concerned about access to justice the impartial administration of the law, then you should be focused on all
of this. Again, I agree with that. I think that certainly the Judicial Conference should be looking at the extent to which particular districts within the country have become magnets for patent and bankruptcy litigation. But that's a slightly different issue and I think more complex. It's a little bit more complicated to resolve than trying to address the problem of single judge divisions that have attracted some of these cases seeking nationwide injunctions against the current administration.
So you mentioned nationwide injunctions, and when Judge Jeffrey Sutton, who's the chair of the Judicial Conference as Executive Committee, announced the change, he said it was prompted by the plethora of national, statewide injunctions being.
Issued by judges in such cases.
And during oral arguments last week we heard from Justice Neil Gorsuch complaining about the issuance of these nationwide injunctions and how you know during FDR's tenure there were none. Is it up to the Supreme Court to put its foot down and stop these nationwide injunctions.
I think that nationwide injunctions are a huge part of this problem, but I think that it's a separate conversation. That is to say, nationwide injunctions have been with us for much longer than justice courses, and some scholars have wanted to acknowledge. It is true that there has been a proliferation of these nationwide injunctions, particularly starting with the Obama administration, and then we really see them explode in
a lot of ways during the Trump administration. It seemed as though every single time you had individuals and organizations challenging particular Trump administration policies. The remedies that they would seek would be a nationwide injunction, not just an injunction limiting the effect of a particular regulation or policy to
those particular plaintiffs. So, yes, there is a broader conversation about whether federal courts are abusing their discretion in the types of remedies that they are issuing, whether the remedies are are too sweeping, encompassing far too many individuals. I don't think that that is necessarily a constitutional problem, but I do agree that the Supreme Court should probably provide
some clarity about the circumstances under which nationwide injunctions are appropriate. Now, the way that this ties back into the problem of single judge divisions is that if you know the judges are willing to issue these really really sweeping at junctions, and you can then choose the specific judge you want who is going to hear your particular challenge, then that
just ratchets up the stakes. It means that if you are a plaintiff and you can identify one single judge in the country, then you might be able to undermine an entire policy nationwide in less than until the Supreme Court steps in and as we've seen with the the Pristone litigation, that can take time even when there's been expedited briefing an argument.
Does this all show, I mean, has the federal judiciary become more.
Polarized in recent.
Years with the confirmation of a lot of Trump appointees who were not just conservative but ideologues.
I certainly think that that is true. I think that it's always been true that different judges bring their backgrounds and experiences to bear on the cases that they hear. But there's really been a conservative effort by the conservative legal movement to, as you say, not just place conservatives on the various federal courts, but to place the ideologue.
That is not to say that every single judge appointed by President Trump is an ideologue, but I think that some of the most ideologically motivated judges were indeed placed on these courts by President Trump.
Could Congress solve this by passing legislation to curtailed judge.
Shopping, absolutely, and that's been part of the debate and part of the pushback. After the Judicial Conference announced its policy, you had a number of members of Congress saying, this is not really the province of the Judicial Conference, This is something that Congress should be doing. I agree with the second part of that. This is absolutely within Congress's power to regulate the federal judiciary, to design the shape of the judiciary, the shape of the districts, the circuit,
so on and so forth. All of that I think is unquestionably within Congress's palace. The open question, though, is what happens if Congress doesn't act. Is there any other body that could act on its own? I think that the court system, on its own could act. And then the question as well, is the Judicial Conference a step too far removed from, say, the office of the Chief Justice. I don't think that it is. I think that the Judicial Conference is there to provide guidance in exactly these kinds
of situations. They obviously need to make sure that they're not running a foule of statutes that are on the books. But there's always been a cooperative interaction between Congress and the judiciary itself with respect to managing some of these questions of judicial administration.
Finally, a lot has been said about how an outside share of the Supreme Court's biggest cases come from the most conservative Court of Appeals in the country, the Fifth Circuit because its far reaching rulings are proving difficult for the justices to ignore what I'll call judge shopping because those cases, a lot of those cases come from Texas.
I think that that is absolutely right. You have the Fifth Circuit, which has become increasingly ideological, you have one of these single judge divisions in Texas, namely Judge Casmark, and you have a Fifth Circuit that is really pushing the boundary. So the Supreme Court, even a very conservative Supreme Court with a supermajority of conservative justices, is policing some of these more I will say adventurous ruins by the Fifth Circuit, and we'll just.
Have to wait and see whether the Judicial Conference actually manages to get anything done with regard to judge shopping. Thanks so much, Alan. That's Professor Alan Trammel of Washington and Lee Law School. Coming up next on the Bloomberg Lawn Show. Why Homeland Security agents raided Shawn didty Combe's homes in LA and Miami. I'm June Grosso and.
You're listening to Bloomberg.
Heavily armed Homeland Security agents rated Seawan didty Combe's homes in La and Miami last week, handcuffing some of the people inside the home as they carried out their search for hours. The raids are reportedly part of an ongoing investigation into sex trafficking. According to the Associated Press, these raids follow multiple lawsuits filed against Combs in Reces months
with allegations of sexual assault and sex trafficking. Joining me is Albert Soler, chair of the Entertainment department at Scarncy Hollindbeck. These raids were very visible, conducted with search larrants.
What does that tell you?
What it tells me is that they have a very solid basis for wanting to obtain additional evidence and just just a little bit of background this all started, and of course their allegations, right, I always like to say
that because everybody has their day in court. But this was prompted by the lawsuit by Cassie Ventura and that was a former longtime partner of Ditty's Sean Comb's, and there are worthy initial allegations came out about the sexual abuse and so that prompted the initial eyeballs on this situation, followed by the February lawsuit of Rodney Jones, the producer Lil rod and so what happens is when you start getting lawsuits like that on a civil level, then on
the criminal side, the attorney generals have to start paying attention, the district attorneys start paying attention. And that's what happened in this case. So because other women came forward with corroborating type of accusations and similar type of accusations, then
Homeland Security is permitted to obtain the search warrant. And they did conduct the raids on Miami and LA homes, but it was primarily because you had multiple sources making the same accusations, which allowed them to obtain the search warrant. So yes, after they started coming forward, it gave them enough cause to obtain the search warrant and raid its homes.
So what does it tell you that it was the raid was done by Homeland Security agents not by the FBI.
Well, I mean, they do share jurisdiction on a lot of these type of cases. I have seen other matters where Homeland Security actually actually conducts the raids. It's not necessarily for one reason or the other, just who happens to have the resources at that time, and who's in the area at that time, and who they to go. I don't know that it was a specific reason why that is, but I have seen both. I've seen the FBI do it, and I've seen the Department Homeland Security
do it. But I will say that I think what's important here is that those type of raids are serious and the way they conducted them were very aggressive, which leads me to believe that they had a lot of corroborating evidence for what the allegations may be and.
That support the allegations.
So just in case, what they're looking for there is substantiating, corroborating evidence to support the allegations asserted against him by the three women and by Cassie Ventura and by Rodney Jones. And they're primarily looking for things like videotapes. They're looking for photographs, looking for pictures, records of flight, where were you, who was there? And they're trying to find support so
that they could actually bring charges. If they find the support, they can bring charges against mister Comps.
Yeah.
So now I understand that they handcuffed three people, including two of his sons, during the rate at his La home, and handcuff four during the rate at his Miami home.
Is that unusual.
No, it's not unusual. Just to be clear, no charges have been brought against any of the sons, any of his affiliates. What it is is similar to a traffic stuff. Sometimes when you are serving kind of a high stake warrant like that, or when you are conducting a raid, you just want to make sure that the folks inside aren't armed. You want to make sure it's not an ambush.
The officers a home mad security agents don't know what they're walking into, right, So when you walk into a situation where the principal of the home has been accused of sexual crimes and other crimes, it's just for the safety of the homeland security agents. But they don't know what they're whether they're going to face guns, whether it's going to be people that are armed security folks that
may confuse them for somebody else. So what it really is just a protective measure to give them time to assess the situation without risk.
And they did, according to NBC News, they did find guns. Do you think that they could have gotten a search warrant based on the allegations in the civil cases alone?
As I said at the start, I think it's really important to understand that the basis for the criminal cases that may come and for the search warrants were the civil cases. Because you have a civil case asserting criminal conduct. So the civil cases that assert the criminal conduct are also the basis for why it is that the criminal cases started to develop and why they had a responsibility to investigate. For example, sex trafficking obviously is a criminal matter.
So when it's asserted and a complaint on the civil level, and they mentioned it during the complaint and then the paperwork, then obviously it raise his eyebrows. And when it happens two or three times, as it did in this case, because if you recall there were three women that filed civil suits subsequent to Cassie van Turro's is when you start getting a lot of repeat type of accusations, which really can see interest of the criminal focus on that side.
So it was the civil assertions in the civil lawsuits that prompted the criminal investigation, that was the basis for the criminal investigation.
Do you think that these civil lawsuits are giving investigators sort of a head start or a roadmap to the criminal investigation.
Yeah, one thousand percent, that's absolutely right. And if you remember what the civil complaints are going to have is they're going to have a very detailed fact section and they're going to pretty much spell out the elements of those claims. So whatever was asserted, all the actions, all the illegal supposed activity is going to be supported by factual assertions in the complaint. So on the criminal side, you kind of have a roadmap as to what was
happening and supporting evidence for the criminal conduct. In fact, that's probably what they were looking for whatever was mentioned in the complaints as far as this happened at this party, this type of activity has happened at parties. You had underaged that these events, whatever the allegations were, is what they're trying to find evidence for by conducted the race.
So it does give them a roadmap, and it gives them a lot of factual assertions to go by when they walk into the home and when they raid the homes, they know exactly what they're looking for at that point.
So Rodney Jones, as you mentioned, filed that lawsuit and in it he also talked about Brendon Paul, who was described as a confidante and drug mule. Now he was taken into custody on suspicion of cocaine and a control substance laced candy. But did he was not taken into custody.
Oh, because what happened there My understanding was that he actually had the candy on him. It's like if I had illegal drugs on me, they would arrest me and not the person next to me. So it's the one carrying it. And so he actually had I believe the drugs or the candies that were laced with what they believe of drugs, which gave him cause to arrest him. Did he wasn't involved in that because he didn't have
any anything on him. Had he had the same candies or products or items, then he would have been arrested as well. So it's pretty much because he got caught with the illegal substance on him that automatically he was arrested for that. But did he didn't have that? And real quick, I do want to say something about the labeling. That happens a lot, right, and it's very important to say that these are allegations because nothing's been proven yet.
They're looking, they're investigating. So for example, in the celebrity world, there's a lot of parties where are there are listed drugs all the time, and there are folks that provide those drugs. And here I always find it interesting how, you know, the media and everyone then labels him a drug mule when it was probably just a guy who you know, procured these things for these kind of entertainment parties,
and it happens rather frequently. So I just want to point that out too, because it seems like they're kind of repeated over and over. Now he's a drug mule, now he's a gun runner, when in reality, these things, you know, they're pretty common when it comes to in payment, but they are illegal and they're not correct obviously, right.
The sex, drugs and rock and roll, I mean, do they get a bit of a pass on things people in that industry?
No?
No, I think that you know, everyone's held to the same standard. It's just that, you know, it's very hard to police everything, and depending on who you are and the artists that you are and the type of events and parties you throw, there may be that there may not be that, but I think nobody gets a pass as is shown here. I mean, these these activities were described by first Miss Ventura and then other people that corroborated it, and now they went into a full blown
investigation of it. And the gentleman who had the drugs on him, regardless of who he was associated with, was also arrested around the spot. So there are no passes. But I always want to always want to emphasize the presumption of innocence until there's actually a conviction and evidence comes out.
Does this echo or in any way follow the pattern that we saw in the cases of R. Kelly and Harvey Weinstein.
Yeah, I mean I think it does, because what happens is that nothing really happens until you start to get that one case, that one accusation. And what happens is when somebody is accused of these kind of crimes in the case of R. Kelly, very serious, in the case of Harvey Weinstein, very serious, in the case of the Ditty very serious. It's when you get multiple cases underneath, multiple accusations that kind of mirror each other. Right, in the case of Harvey Weinstein, you had many women. In
the case of Bill Cosby, you had many women. So when you start getting tons and tons of victims coming forward or alleged victims, then it peaud the interest and then you start getting the investigations. Wait a minute, if fifty people must be saying this must be something to it, we have a responsibility to investigate, and the criminal folks investigate to make sure there's something there or nothing there.
So I think it is a pattern. I think the key here is that you do have multiple accusers, and when you have multiple accusers for legal activity, you typically do have an investigation that's serious, it's aggressive, and they want to make sure that the conduct, if it's occurring, stops immediately. So I do think it's similar.
They're talking about the trial almost twenty five years ago where Shahn Colms, then known as Puffy, and his bodyguard were arrested following a shooting inside a Times Square club and he was represented by Johnny cochrane and he got off. And now they're saying that he has bragged about bribing witnesses and jurors in that case.
Right, And so what's interesting there is that obviously you have a statute limitation usually on these kind of of allegations and on the type of claim. However, there's an exception when there's new evidence that was previously unknown, right, you do have the ability to bring that before the court the judge, and usually you are afforded the opportunity to revisit those based on brand new evidence that did
not or could not exist back then. So if Diddy is going around saying that and admitting that he did that into this, obviously tampering with witness is a serious, serious accusation. It's not to be taken lightly, and so that would definitely be grounds for possible revisiting of that claim. So yeah, that's interesting and I could see them revisiting
that again. And he's just in a very difficult situation right now, facing legal challenges at multiple fronts, and it'll be interesting to see how that plays out.
Thanks for being on the show. That's Albert Solar, Obscurency Holland Beck and that's it for this edition of the Bloomberg Law Podcast.
Remember you can always get the latest legal news.
By subscribing and listening to the show on Apple Podcasts, Spotify, and at Bloomberg dot com, slash podcast, Slash Law. I'm June Grosso and this is Bloomberg four