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The Justice Department’s Fight Against Shopping by Texas Judges


The Justice Department has filed three high-profile lawsuits filed in Texas against the Biden administration’s policies, accusing state politicians of electing small, conservative federal court divisions that have little relevance to their cases but almost make them a sympathetic judge to guarantee.

It’s part of the government’s first concerted effort to fight what some legal experts say is a growing problem of “forum shopping” — a strategy where plaintiffs are supposed to choose judges they want to hear, despite the arbitrary allocation of judges. that is considered a principle of the American legal system.

One of the requests was rejected. The other two are pending. In the fall, the Justice Department succeeded in convincing a Texas judge in a fourth case — involving a death row inmate — that he had no authority to rule on the case.

In the three lawsuits over the Biden administration’s policies, Texas attorneys general and a group of other states filed complaints in rural federal courthouses, each staffed by a lone judge with a reputation for speaking out against the policies of the democratic government. In contrast, most divisions of federal courts across the country have multiple judges, who are randomly assigned to cases as they are filed.

The Justice Department appeared to be cautious in its requests, trying to reassure the judges that the government believes they would be impartial, but still asked them to transfer the cases to a district with a more relevant connection to the case . Even the perception of judge shopping, the federal government argued, could erode public confidence in the justice system.

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“The persistent tactic of plaintiffs and other litigants to bring many of their lawsuits against the federal government in single-judge divisions or divisions where they are almost always guaranteed a particular bailiff undermines public confidence in the administration of justice and warrants transfer in the interests of justice,” the department wrote in a motion last month requesting a transfer of a lawsuit related to immigration policy.

That suit challenges the Biden administration’s new parole program, which would grant two-year legal entry to up to 360,000 people a year from Cuba, Haiti, Nicaragua and Venezuela.

Judge Drew B. Tipton, a candidate for President Donald Trump who rejected another of Biden’s immigration proposals in 2021, rejected the transfer request earlier this month.

“On the one hand, all parties to this case have categorically stated that this court will be fair and impartial in the handling of this case,” Tipton wrote in his ruling on the parole transfer request. “On the other hand, the federal defendants argue that filing lawsuits in separate judges creates a potential public perception that the judge may not be.”

The other two suits challenge environmental policies and whether Congress followed voting protocols in passing a $1.7 trillion bill. Federal attorneys argued that all three cases should have been filed in Austin, the Texas capital, or Washington, D.C., the nation’s capital.

At the very least, the Justice Department argued that the judges should consider turning the cases over to multi-judge Texas divisions to avoid the perception of judge shopping.

Texas Attorney General Ken Paxton (R) and his team argued in their response letter that they are not breaking any rules by filing charges in these small divisions and that Biden’s policy would affect all Texas residents, including those in the communities where the cases have been filed. .

Democrats and Republicans have long searched for divisions where they feel they have the best chance of getting a judge or jury pool that would be favorable to them — for Democrats, that means filing in district courts in liberal areas. There are no federal laws prohibiting single wards, and Texas isn’t the only state to have them. But according to legal experts, the ability to adjudicate in Texas is unique because of the sheer number of single divisions there are, most of them in rural, heavily Republican areas.

Texas has four major federal courts. Steve Vladeck, a constitutional law professor at the University of Texas law school, said those four districts are split into 27 geographic divisions. Eight divisions have a single judge, giving litigants an almost 100 percent chance of getting a predetermined judge, something Vladeck says should worry people across the political spectrum.

“People should step back and say, even though I’m sympathetic to the content of these lawsuits today, I like to set a precedent where a hand-picked district judge in a remote state can dictate national policy in future presidencies?” he said.

Paxton’s office has sued the Biden administration 28 times in Texas courthouses, according to a letter from the Justice Department. Eighteen of those cases were filed in single-judge divisions, the department said.

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One of the department’s challenges went to Judge Matthew J. Kacsmaryk in Amarillo, Tex., a Trump nominee who recently made headlines when he led a lawsuit to revoke the Food and Drug Administration’s approval for the abortion drug mifepristone .

The Biden administration has not sought a transfer of the mifepristone lawsuit, nor any other lawsuit filed in the Kacsmaryk courthouse that seeks to block a gun regulation by the Biden administration.

Instead, the Justice Department has asked Kacsmaryk to relinquish control of a case challenging a policy that allows pension plan managers to factor climate change and other environmental and social issues into their investment decisions.

At least one of the plaintiffs in both the abortion pill and gun policy lawsuits has ties to Amarillo, making it more difficult for the Biden administration to argue that the cases shouldn’t be filed there. But the environmental investment case has no such connection, according to the Ministry of Justice.

Fordham Law School professor Bruce Green said separate judges have not been created for lawyers to find loopholes in how judges are assigned to cases. Instead, he said, they were established so that people living in rural communities would have easy access to courts — even if the population was not large enough to support courthouses with multiple judges on duty.

In some states, rural judges rotate courthouses to avoid having just one judge, making it much more difficult to guarantee that a case will be heard by a specific judge.

“It makes sense to have the equivalent of a one-room, one-court schoolhouse with one judge presiding over it, so anyone who lives in that area and is close to that courthouse submits there,” Green said. “It ceases to make sense if the case has no specific connection to that location.”

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South Texas College of Law professor Josh Blackman said he sees no ethical problem with Paxton trying to “forum shop.” The attorneys follow longstanding federal rules about where lawsuits can be filed, he said. cases were lawfully filed with a specific court division.

“Why is the Texas Attorney General filing in Amarillo?” said Blackman. “The answer is that it is a unicameral judge. Law seekers rational forum shopping.”

The Justice Department scored one victory last year in its battle against judge shopping, persuading a conservative judge in Wichita Falls, Texas, to dismiss a trial involving an Oklahoma inmate and the death penalty. The federal government had sentenced John Fitzgerald Hanson to life in prison in 2000 for a series of robberies. He was later sentenced to death by the state of Oklahoma for the murder of two people.

In October, the Oklahoma Attorney General filed a lawsuit in Wichita Falls requesting that Hanson be transferred from federal to state prison so that he could be executed. Oklahoma lawyers said they filed the case in Wichita Falls — a city in northern Texas — because it was about halfway between where Oklahoma’s Attorney General lived in Oklahoma City and where the regional director of the Bureau of Prisons lived. lived in west Texas.

The Justice Department argued that the lawsuit should be filed in the Western District of Louisiana, where Hanson is incarcerated.

In response, Reed O’Connor — a George W. Bush appointee who is considered a conservative-policy judge — dismissed the case.

“This case has been REJECTED,” he wrote, “due to lack of jurisdiction over the subject.”

Caroline Kitchener contributed to this report.

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