DOJ wants to stop Republicans from choosing the judge who hears their lawsuits

Last week, the Justice Department decided to confront one of the most dangerous and exploitative disruptions in the American courts.

There are several federal court judges in Texas — Matthew Kacsmaryk, Drew Tipton, and Reed O’Connor are perhaps the best known among them — who generally act as rubber stamps for whatever right-wing cause appears in the courtroom. If you want a court order to try to repeal Obamacare, or lock down Trump-era immigration policies, or attack birth control rights, these guys are happy to deliver.

Normally, the fact that some court judges hold extreme views would be unfortunate, but hardly a crisis. According to the Federal Judicial Center, there are 71 federal court judges in the state of Texas, and federal lawsuits are supposed to be randomly assigned to local federal judges shortly after they are filed. So, if the Texas federal courts were to function properly, judges like Kacsmaryk or Tipton would only be given cases brought by litigants with a political agenda.

But the case assignment process in Texas is not working properly. A Texas federal court assigned 100 percent of all cases filed in Amarillo to Kacsmaryk. He assigned almost every case filed in Victoria to Tipton. This means that right-wing litigants can guarantee their lawsuits will be heard by allied judges simply by filing their lawsuits in one of the two cities.

To be fair, it’s not clear that this system was created for nefarious purposes — Texas is a large state with four federal judicial districts that each cover hundreds of square miles. Assigning all cases filed in Amarillo to a judge who actually sits in Amarillo can save ordinary litigants from traveling hundreds of miles to court hearings. But the practical impact of this guaranteed assignment system right-wing litigants from all over the country travel to places like Amarillo or Victoria to judge-shop.

Then, after these litigants’ hand-picked judges issued a national injunction enforcing whatever policy the litigants wanted, the case moved to the Fifth Circuit – where 12 of the 17 active judges on the court are held by Republican officials, and where the cut is good. from the judge shows the same flexible approach to the law that Conservative litigants receive from judges like Tipton or Kacsmaryk.

As a result, right-wing policies enacted by a few outlier judges often remain in effect for months or more than a year before the Supreme Court finally steps in and restores sanity.

Last Tuesday, the Department of Justice finally decided that something had to be done about this issue. It filed a motion in one of Kacsmaryk’s political cases, arguing that he should transfer the case to a location that would be randomly assigned from a list of more than one judge. The Texas federal court’s practice of allowing conservative litigants to choose their own judges, the motion said, “undermines public confidence in the administration of justice.”

Realistically, the chances of Kacsmaryk giving this move are very low. Kacsmaryk has spent his brief time on the bench undermining public confidence in the administration of justice with court decisions that are inconsistent with the law. But the move would, at the very least, allow the Justice Department to appeal this issue up the court chain — and ultimately to the Supreme Court, where the justices can step in if they choose.

But will they get in? At least one conservative justice has acknowledged that the number of national injunctions coming out of lower courts is a problem. But until now, the Supreme Court’s GOP-appointed majority has been content to allow judges like Kacsmaryk to sabotage Biden administration policies for months or longer — even sometimes acting after the policy has been on hold for nearly a year, and rulings. that the partisan trial judge who decided the case was wrong.

At the very least, the DOJ’s move shines a big spotlight on the issue of judge spending, and could shame the Supreme Court into taking action.

Matthew Kacsmaryk is arguably the worst judge in the United States

As a general rule, lawyers are reluctant to ask a judge to change the case to another judge for any reason, no matter how justified, because the request tends to upset the judge. The Justice Department, in particular, has good reason to shy away from such requests because it is a repeat player in federal court. If the DOJ is upset with a particular federal judge, it should look back at that judge.

But Kacsmaryk ruled against the Biden administration several times, and seems to be hostile to the idea that the law sometimes requires results that right-wing activists do not like, that the Department of Justice certainly calculates that there is no harm from antagonizing. Kacsmaryk.

Matthew Kacsmaryk’s notes read like a villain in a parable about a puritanical witch. A former lawyer at a Christian right-wing law firm, Kacsmaryk claims that being transgender is a “mental disorder,” and that all gay people are “disorders.” He fought against the “Sexual Revolution” that began in the 1960s and 1970s, which supposedly declared that “marriage, sexuality, gender identity, and even the unborn should yield to the erotic desires of emancipated adults.”

Kacsmaryk is the first federal judge to support an attack on contraceptive rights after the Supreme Court’s ruling stripped the constitutional right to abortion last June. They are trying to neutralize a federal ban on LGBTQ discrimination by health care providers. And they are widely expected to ban the drug mifepristone, a drug used in more than half of all abortions, in a lawsuit brought by the Alliance Defending Freedom, a far-right evangelical group.

The specific case that the DOJ asked Kacsmaryk to leave from, Utah v. Walsh, quite far from the more prurient problems that defined much of Kacsmaryk’s career. These include Department of Labor regulations governing duties that investment managers must pay for pension funds and similar investments to prepare workers for retirement. This regulation is being challenged by many countries with Republican leaders, as well as some energy companies, who claim it does too much to promote “environmental, social, and governance (‘ESG’) factors in investments” – a pet issue. of Federalist Society co-chairman Leonard Leo.

But Kacsmaryk is more than willing to do water for the cause of the Republic, even in cases that do not raise sexual problems that have been written about so ineloquently in the past. Given the long line of Republican luminaries challenging this rule of the Department of Labor, in other words, Kacsmaryk’s record suggests that he will defeat the rule, regardless of whether it is legal, if it continues for this case.

So the DOJ has a chance to succeed in its efforts to limit GOP judge-shopping?

The Justice Department’s actions primarily rely on federal laws that create lawsuits against federal officials. Blocking situations that are not in Utah in that case, the suit must be filed in the judicial district where “the plaintiff resides.”

Texas is divided into four federal judicial districts, the Northern, Eastern, Western, and Southern Districts of Texas, and Kascmaryk is located in the Northern District. According to the DOJ, however, the only plaintiff who resides anywhere in Texas is the state of Texas itself.

Meanwhile, federal law provides that “entities having the capacity to sue and be sued . . . shall be deemed to reside . . . only in the judicial district that maintains its principal place of business. The DOJ argues that the state of Texas’ “principal place of business” Austin, the state capital, which is located in the Western District of Texas. So this case cannot be heard in the courtroom of the Northern District of Kacsmaryk.

In addition, the DOJ pointed to a statute that allows cases to be transferred to a different district “for the convenience of the parties and witnesses, in the interest of justice.” Among other things, the DOJ argues that “‘ interest[s] only the transfer of justice” because “the public’s interest in the fair administration of justice will be harmed if submissions with strong indications of judicial spending are not checked.”

Of the two arguments, the latter is far and away the stronger. While the former’s argument may have removed this case from Kacsmaryk’s courtroom, future litigants could overcome that argument by adding a plaintiff to the case who resides in the Northern District of Texas. They may have been able to establish the plaintiff by creating a shell company headquartered in Amarillo.

The latter argument, by contrast, suggests that judge spending is highly suspect under federal law, and may allow the DOJ to attack any attempt at a lawsuit challenging federal policy against partisan judges like Kacsmaryk or Tipton.

But any argument can be made in a Supreme Court dominated by Republican officials who, in the past, have been quite content to sit on their hands and allow the most egregious decisions by the most partisan Republican judges to remain in effect for months. time?

The short answer is “maybe.” At least one of the Court’s Republican appointees, Chief Justice John Roberts, has shown some sensitivity to concerns that the judiciary is behaving in a way that, in the words of the DOJ, “undermines public confidence in the administration of justice.” He even complained about judge spending in his 2021 annual report, though only in the context of patent litigation.

And Roberts has shown more capacity for embarrassment than any of his fellow Republican appointees to the Supreme Court. Although a staunch conservative, Roberts has even broken with his fellow GOP appointees in abortion cases when he thinks anti-abortion litigants are seeking rulings that would make the court look too hackish.

Meanwhile, some judges have complained specifically about how easy it is for litigants to find a single judge willing to end an entire federal program. In recent oral arguments, Justice Elena Kagan, an Obama appointee, told the Texas attorney general that she was concerned about how, especially in immigration cases, Texas should elect its judges.

Additionally, in a 2020 opinion written while Donald Trump was still president, archconservative Justice Neil Gorsuch wrote persuasively about the need to prevent a single outlier judge from putting all federal policy “on ice.” This opinion was also joined by Justice Clarence Thomas, although both Thomas and Gorsuch have been quieter on the issue of national injunctions since the Democrats moved into the White House.

Maybe Kagan and Gorsuch can work out a compromise that would take away the power of conservative litigants to get whatever injunctions they want from people like Matthew Kacsmaryk, while also imposing some limits on the court tactics Democrats have used to attack Trump-era policies. Or maybe Roberts will be embarrassed by the increasingly public spectacle made by judges like Kacsmaryk who will try to find a fifth vote to stop this practice among fellow GOP appointees.

Realistically, the DOJ faces an uphill battle if it hopes to rein in the worst judges in federal court. But at least the DOJ now seems willing to test whether the judge can do anything about the rogue judge.