Republican leaders go to the mat to protect judge shopping
When you've lost John Roberts ...
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Besides the fact that Trump was able to stuff the federal courts with Federalist Society hard-line judges, conservatives have another tool at their disposal: rampant judge shopping.
Litigants wanting their most outrageous claims to be rubber-stamped need only bring their lawsuits in two exceedingly friendly jurisdictions in Texas. The Judicial Conference of the United States, the congressionally authorized rule-making body for federal courts, recently issued new policy guidance that would curb this practice, but conservative judges and legislators simply said they will refuse to follow it.
It’s a profoundly undemocratic stance, highlighting the complete breakdown of checks and balances in the Trump era.
Republicans have gotten very good at gaming the courts
Judge shopping is exactly what it sounds like — the practice of picking the judge most likely to rule in your favor. Conservatives have successfully used this practice not just to obtain a victory in the jurisdiction where they brought the case but also to get their preferred judges to issue nationwide injunctions. That’s where a lone judge issues a decision that blocks a law nationwide. The GOP used to decry the practice as unconstitutional judicial overreach. But unsurprisingly, once President Joe Biden took office, they became big fans of it.
Like nationwide injunctions, judge shopping is not a new practice as such. Indeed, for years, conservatives have railed against the practice when it comes to what is euphemistically referred to as “tort reform.” Corporations have long loathed the idea that plaintiffs injured by the negligence of the powerful bring cases in courts that might favor the plaintiffs. Companies want limits on what plaintiffs can recover, regardless of how egregious the defendant's conduct is. Business interests like the Chamber of Commerce declared certain jurisdictions “judicial hellholes” because they often ruled in favor of plaintiffs.
However, conservatives have cast their concerns about judge shopping aside these days because they know that they can get the results they want by bringing cases in front of the right judges. These aren’t typically cases seeking any sort of economic recovery. Rather, they are cases that attack Obamacare, literally any executive action President Biden tries to bring, and any laws that favors LGBTQ rights.
For years, red state attorneys general and conservative activists have tried to eliminate Obamacare. They’ve consistently brought cases in the Fort Worth Division of the Federal District Court for the Northern District of Texas. There’s only one judge there, Judge Reed O’Connor, who threw out Obamacare entirely in 2018, saying the law was unconstitutional. When that didn’t succeed, plaintiffs continued to file cases in O’Connor’s court to chip away at Obamacare piece by piece.
In 2023, O’Connor issued a nationwide injunction that eliminated most preventative care provisions in Obamacare. Those provisions made health insurers cover vital healthcare for free, including things like colorectal scanning and prescribing statins for people at risk for heart attacks. But conservative Christians were mad that the preventative care also included screenings for STDs and coverage for PrEP, the drug that stops the transmission of HIV. So, they brought it to O’Connor, who promptly agreed that requiring health insurance that covered those things violated the plaintiffs’ religious freedom, eliminating most preventative care in the process.
Thanks to Trump, plaintiffs are no longer limited to bringing things in O’Connor’s court. Now, they also make sure to get cases in front of Matthew Kacsmaryk, the only federal judge in Amarillo, Texas. Before going on the bench, he was counsel for First Liberty Institute, representing conservative religious plaintiffs who don’t want to provide services to same-sex couples and opposing every effort to provide protections based on gender identity.
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Since taking the bench, Kacsmaryk has been a one-man juggernaut against progress. In 2021, he barred the Centers for Medicare and Medicaid Services from requiring that healthcare workers be vaccinated against covid. In 2022, he issued an order invalidating the confidentiality provisions of Title X, a federal family planning program that had allowed teenagers to obtain birth control without parental permission. That same year, he held that though Title VII protects transgender individuals from employment discrimination, but that somehow did not include requiring employers to respect people’s pronouns or allow them to use the bathroom that aligns with their gender identity. And of course, Kacsmaryk is the judge who last year invalidated FDA approval of mifepristone, one of the drugs used in medication abortions.
Meanwhile, liberal lawyers trying to overturn Alabama’s ban on transgender care for minors were accused of judge shopping to avoid having their case heard by Trump appointee Judge Liles Burke. Several now face the possibility of sanctions so severe they could be barred from practicing. So in short, directing cases to favorable judges for liberal causes is sanctionable behavior, but directing cases to favorable judges for conservative causes is just fine.
Last month, in an effort to stem judge shopping, the Judicial Conference issued case assignment guidance. The policy states that federal district courts should assign cases at the district-wide level if the case involves an attempt to block or require statewide enforcement of a state law or regulation or an attempt to block or require nationwide enforcement of a federal rule or regulation.
Practically, this means that litigants seeking a nationwide injunction couldn’t choose to file a case in Fort Worth just to get Judge O’Connor or in Amarillo just to get Judge Kacsmaryk. Instead, the cases would be randomly assigned at the district level. Both the Fort Worth and Amarillo courthouses are in the Northern District of Texas, where there are 16 district court judges, and litigants would have no control as to which of those 16 they get. This still represents a huge advantage to conservatives, as only two of those 16 were appointed by Democratic presidents. Still, even this is too much for conservatives who have grown used to near-guaranteed wins from O’Connor and Kacsmaryk.
Immediately after the Judicial Conference issued the policy, Republican Sens. Mitch McConnell, John Cornyn, and Thom Tillis sent a letter to the Chief Judge of the US District Court for the Eastern District of Kentucky stating that the courts could just refuse to follow it. The Chief Judge of the Northern District of Texas, George W. Bush appointee David Godbey, already issued a letter to Senate Majority Leader Chuck Schumer saying the district would not be following the Judicial Conference policy at this time.
Tillis’s involvement here is especially cynical, given that he wrote to the conference in 2021 complaining about patent cases being filed in single-judge divisions. McConnell, for his part, issued remarks slamming the new policy as partisan and designed to “restrict access to conservative judges.”
It’s unclear how this is partisan, given that the policy stems from the Judicial Conference, not any Democratic legislators. The conference is presided over by Republican appointee Chief Justice John Roberts, and its membership is set by statute. It consists of the chief judges of each federal court of appeals, a district court judge from each circuit, and the chief of the Court of International Trade. Of those 26 members, 14 were appointed by Republican presidents.
These are not wild-eyed progressives but a group of jurists who are understandably concerned about public confidence in the federal courts. The conference has been around for over 100 years and reviews issues and sets policies on everything from case management to information technology to rules of practice.
However, Republicans aren’t interested in public confidence in the courts. They’re interested in using the courts as a cudgel to block progress and invalidate legislation and rules enacted by Democrats. Telling the federal judiciary to ignore a policy literally set by the federal judiciary doesn't strike them as the least bit problematic.
The issue here is that this is a policy, not a law. Following past policies has typically been non-controversial and routine, but that was before conservatives took a sledgehammer to norms. Witness Justice Clarence Thomas’s refusal to recuse himself from cases that involve his wife, conservative activist Ginni Thomas, and his disregard for ethics rules that require him to report the lavish gifts he receives from conservative billionaires. Witness Donald Trump’s attacks on the daughter of the judge in his criminal hush-money trial in New York and his insistence he was unable to secure the full amount of his appeal bond in his civil fraud case, which turned out to be a lie.
American democracy is simply not built to effectively regulate the behavior of powerful people who don’t believe the rules apply to them. It’s a crisis of epic, dangerous proportions, and there’s no solution in sight.
That’s it for today
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That is a good point at the end about regulating the behavior of rich people who believe the rules do not apply to them.
Here it would be helpful to list examples of civil societies in other countries which have dealt with this successfully.
Thanks very much for this piece!
Appreciate this piece and your work very much!