There are different ways to think about the differences between judges and the related problem of forum shopping:
On a model, all the judges are exactly the same. They all apply the lawwho has particularly correct answers. It doesn’t matter who your judge is because they will all apply the law and all find the right answer.
On a second model, there are two types of judges: fairAnd unfair. Fair judges are basically the same. They all apply the law, which only has the right answers. But there are also unjust judges, who do not apply the law. So it matters whether you get a fair judge or an unjust judge.
On a third model, all the judges are policy. Judges are different insofar as their policies are different. It doesn’t matter who your judge is because judges have different policies and judges will enforce their policies. Some people think this model is fair, and others think it is unfair.
On a fourth model, all judges are fair and apolitical and apply the law, but they are also not exactly the same. The law is complicated enough that even two righteous judges, both applying the law, may not always arrive at the same answer in all cases. No judge is unfair, but judges are different.
These patterns affect how we think about things like shopping forum and shopping judge. On the first model, of course, the shopping forum is useless, and the people who complain about it are delusional. On the second model, forum shopping is probably bad in that people with bad deals choose unfair judges, and we should remove deals from unfair judges, or get rid of them altogether if we can. Etc.
But suppose we believe in something like the fourth model. Excessive forum shopping will always result in bias judgment in favor of the plaintiffs, even if the judges are not biased. So it would be a mistake, a category error, to ask opponents of forum shopping if they think the judge is biased. Instead, we should ask ourselves if the judges are different, and if so, whether it matters to us if the plaintiff has to choose the same among the different judges again and again. Maybe yes, maybe not, but that’s the question. That’s why I don’t share Josh’s reaction to the litigation involving the judges of the Federal District of Texas.