But lawyers are likely to continue seeking favorable courts until jurists are appointed for their legal acumen, not ideology.
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.
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.
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. 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 what its record of safety is or what the FDA says about it.
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