Republicans have been funneling all manner of issues to judges they know are sympathetic and unreasonable; for example, there’s a 5th district court in northern Texas where sanity reliably goes to die.
This is where the Trump judge overturned the abortion pill’s approval from the FDA, an federal organization over which he does not have oversight.
Senate Majority Leader Chuck Schumer (D-NY) is calling it out and pushing to end the “dangerous practice.”
In a letter sent to PoliticusUSA by the Leader’s press office, the Senate Majority Leader pointed out that “litigants can now effectively choose which judge will hear their cases, undermining free and fair trials” and urged the Chief Judge of the U.S. District Court for the Northern District of Texas, David Godbey, to reform the District Court’s method of assigning cases.
Schumer highlighted the math, which does look blatantly unfair, “Even though there are 16 total judges who could hear cases, many divisions of the District have only one or two judges who will be assigned if a civil case is filed there. Plaintiffs have taken unfair advantage of this practice to hand-pick district judges who they see as sympathetic to their cases.”
The only way Republicans could have found a judge Right wing enough to try to muscle out the FDA, without knowledge or expertise on the issue, no less – was to find a Trump-appointed judge with a history of (some of it hidden in the lead up to his confirmation) far right activism on the issue of abortion and LBGTQ rights.
They found that man in Judge Matthew Kacsmaryk, a controversial appointee with a history of hostility to the LGBTQ community and to women’s health and now the only U.S. district judge in the Amarillo division of the Northern Texas District.
Schumer took issue with the fact that because Kacsmarky is the only judge in that division, any case filed there will be assigned to him. That’s functioning like picking a favorable decision rather than assigning a case.
“Currently, Judge Kacsmarky is the only judge in the Amarillo Division and subsequently any case filed there will necessarily be assigned to him. In his past rulings, Kacsmarky has shown himself to be sympathetic to the anti-abortion movement, and it is clear that he was targeted specifically for this purpose. His ruling was unprecedented – marking the first time a judge has taken a drug off the market against the objections of the FDA.”
Schumer then pointed out that there is no legal requirement to function this way, citing recent precedent in Texas due to judge shopping concerns, “Last year, the Western District of Texas changed its case-assignment rules for patent cases filed in Waco.”
The Democratic Leader also pointed out that other districts “– such as the Northern District of New York – assign cases randomly among all district judges currently serving.”
The judge shopping has gotten out of control in Texas to the extent that the Department of Justice has accused Texas of funneling its litigation against the Biden administration to courthouses “– often in remote parts of the state – where a single, pre-determined judge is assigned most or all of the cases.”
That sounds like the opposite of justice.
The Department of Justice made that point in a brief filed February 28, 2023 (edited for clarity and brevity):
The Office of the Attorney General of Texas has now admitted that it filed this case in the Victoria Division to ensure it would be heard by Judge Tipton: “The case is being filed in Victoria, quite frankly, Your Honor, because of our experience with you.”
Plaintiffs have “handpicked [a particular judge] to decide the particular case or motion in question.”
That admission is critical. “Judge-shopping doubtless disrupts the proper functioning of the judicial system.” Standing Comm. on Discipline of U.S. Dist. Ct. for Cent. Dist. of California v. Yagman…
“It does so by “contraven[ing] the very purpose of random assignment, which is to prevent judge-shopping by any party, thereby enhancing public confidence in the assignment process.” Coates v. SAIA Motor Freight Line, LLC.
The Justice Department has lost two “judge shopping” cases in Texas, the second one being the Kacsmaryk abortion pill case.
The Washington Post explained in March how judge shopping works to get the desired outcome, “In the three lawsuits over Biden administration policies, the attorneys general for Texas and a group of other states filed in rural federal courthouses, each staffed by a lone judge with a reputation for ruling against Democratic administration policies. In contrast, most federal court divisions across the country include multiple judges, who are assigned at random to cases as they are filed.”
At risk of repeating myself, conservatives have literally taken classes at CPAC from Hungary’s Prime Minister Viktor Orban on how to achieve autocratization in a free, democratic country. (The instruction is deliberately mislabeled, it’s not admitting its true goal.)
There are multiple approaches involving the media and taking control of education (already happening here in Florida, for example) but the big achievements come from using the court system to make it legal to steal rights from people and give your party more power.
Back in 2018, Orban and his party ruling party “rammed a law through parliament that poses a new threat to the independence of the country’s judiciary. The law creates a separate administrative court system that will handle cases directly affecting basic human rights, such as elections, right to asylum, right to assembly, and complaints of police violence.”
Cut to 2022 and Hungary is no longer considered a full democracy. “The lack of decisive EU action has contributed to the emergence of a ‘hybrid regime of electoral autocracy’, i.e. a constitutional system in which elections occur, but respect for democratic norms and standards is absent, MEPs say.”
Respect for democratic norms and standards is absent.
We are witnessing the lack of respect for democratic norms and standards all around the U.S.
The question now is does anyone have the will to take it on before it’s too late?
Schumer’s letter is a good start and the DOJ has already been fighting, but all of these fights need to be escalated appropriately now. There is no time to wait.
The full letter:
Dear Chief Judge Godbey:
I write to you today urging you to reform the method of assigning cases to judges in your federal district. As Chief Judge of the U.S. District Court for the Northern District of Texas, you have the authority to files orders governing how cases filed in your district are assigned to judges. Even though the Northern District has twelve active judges and another four senior judges who still hear cases, your orders provide that civil cases filed in many divisions are always assigned to a single judge, or to one of just a few. Cases filed in the Amarillo Division are always assigned to Judge Kacsmaryk; cases filed in the Wichita Falls Division are always assigned to Judge O’Connor; and cases filed in the Abeline, Lubbock, and San Angelo Divisions are split between just two judges. As a result of your recent assignment orders, plaintiffs in your district can now effectively choose the judge who will hear their cases.
Unsurprisingly, litigants have taken advantage of these orders to hand-pick individual district judges seen as particularly sympathetic to their claims. The State of Texas itself is the most egregious example. It has sued the Biden Administration at least 29 times in Texas federal district courts, but it has not filed even one of those cases in Austin, where the Texas Attorney General’s office is located. Instead, Texas has always sued in divisions where case-assignment procedures ensure that a particular preferred judge or one of a handful of preferred judges will hear the case. That includes the Northern District’s Amarillo Division, where Texas has filed seven of its cases against the federal government. Many other litigants have done the same, including the Alliance Defending Freedom in its case challenging the FDA’s approval of mifepristone.
Nothing requires the Northern District to let plaintiffs hand-pick their judges like this. Federal law splits the Northern District into seven divisions, but that is a geographical division only. The purpose of the split is to reduce travel times for jurors, criminal defendants, and other local litigants by allowing cases to be tried locally. Particularly with electronic filing, that division does not need to affect judicial assignments at all. Other district courts with many rural divisions divide civil cases randomly between all their judges, regardless of where the case is filed. The Northern District of New York is—like the Northern District of Texas—a geographically large district split into many divisions. But the Northern District of New York assigns all of its judges to all of its divisions and randomly divides all cases between all of them, regardless of where the cases are filed. A litigant in the Northern District of New York therefore cannot pick its judge by filing suit in Plattsburgh instead of Utica. The Western District of Missouri is similar. And the Western District of Texas last year changed its case-assignment rules for patent cases filed in Waco—apparently in response to forum-shopping concerns—so that such cases are now randomly assigned between all eleven active judges in the district and one senior judge.
The Northern District of Texas could, and should, adopt a similar rule for all civil cases. Currently, a federal statute allows each district court to decide for itself how to assign cases. This gives courts the flexibility to address individual circumstances in their districts and among their judges. But if that flexibility continues to allow litigants to hand-pick their preferred judges and effectively guarantee their preferred outcomes, Congress will consider more prescriptive requirements.
Charles E. Schumer
United States Senator
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