Forum shopping is not new. Judge shopping is not new. Litigants have strategically filed cases in single-judge divisions for as long as single judge divisions have existed. Yet, in recent years, this practice has become intolerable. Writers at Slate and Vox push out a never-ending series of attacks on a handful of district court judges in Texas. Law professors on Twitter amplify those claims. And now, the Department of Justice has embraced this argument. Sort of.
It's important to stress what DOJ has not done. DOJ has not filed any motions for recusal on account that these judges are biased. DOJ has not asked the Fifth Circuit to remove any of these judges. DOJ has not filed a mandamus motion.DOJ has not lobbied Congress to modify the judicial divisions in Texas, or any other state. DOJ has not asked Congress to eliminate all single-judge divisions. DOJ also has not filed a motion for sanctions against the Texas Attorney General for abuse of process. Nor has DOJ filed any misconduct complaint against Texas AG lawyers. All of these actions would be the appropriate vehicles if in fact there was some sort of malfeasance. DOJ hasn't even argued that venue is improper. DOJ has taken none of these actions. Instead, DOJ has filed a series of motions that would not actually determine whether there is any actual malfeasance on the part of the judges or the Texas Attorney General.
What did DOJ do? The government has asked federal judges in Victoria, Amarillo, and Lubbock to transfer certain cases brought by the Texas Attorney General. Why did DOJ file these motions? The precise reasoning is not entirely clear.
Last week, Judge Tipton in Victoria held a hearing on DOJ's motion. DOJ dispatched Erez Reuveni, a career attorney in federal programs, to represent the government. Three themes repeated throughout the hearing.
First, did DOJ think Tipton was biased? The answer was consistently, no.
THE COURT: No. What I'm—what I want is for you to be candid. I've got thick skin. Lord knows I better. And so my question is—I just want to find out: Does the United States think that I can be fair and impartial?
MR. REUVENI: The United States thinks Your Honor can be fair and impartial. That is why we are not filing a motion to recuse.
DOJ did not file a motion to recuse, and made no allegations of bias.
THE COURT: And that's what—I mean, that's what you've said. So do you believe that I would preside over this case fairly and impartially if it stayed in Victoria or went to Corpus Christi?
MR. REUVENI: Yes, Your Honor.
Judge Tipton pointed out that he consistently stayed his rulings, so the Fifth Circuit or the Supreme Court could weigh in.
THE COURT: Right. And so then—so my—my opinions don't even go into effect until at least three judges of the Fifth Circuit have a chance to review my work and grade my papers. I mean, my decision doesn't—and after that, with the cases before the Supreme Court, it was immediately appealed to the United States Supreme Court. So then we had nine very smart people who had the opportunity to review my decision, and it did not go into effect until the Court of Appeals and the Supreme Court had a chance to take a look at it. Don't you think that that also could go a long way toward addressing public perception issues if they hear that my decision doesn't go into effect until a court of appeals allows it to? . …
THE COURT: No, no. No, I'm telling you that in every case the United States has moved for a stay, and I have granted it, and then it goes up to the Supreme Court—then it goes to the Court of Appeals, and it's up to them how long that stay, stays in place.
Judge Tipton's rulings are not the actions of someone who is intent on ramrodding nationwide policy by himself, contrary to the incessant postings on social media.
I spoke to the Washington Post for their profile of Judge Kacsmaryk. It is true enough that Judge K is batting 1.000 in the Fifth Circuit. He hasn't been reversed by his superiors yet. Of course, critics would argue that the Fifth Circuit is packed with rabid right-wing reactionaries. Yet, our humble circuit has a fair share of moderates and progressives. None of them have ever argued that Kacsmaryk, Tipton, or Hendricks is incapable of being fair. None of these judges have had cases taken away from them. (The Fifth Circuit does reassign cases, for example, against Judge Hughes.) Plus, on appeal to the Supreme Court, none of the Justices have argued that these judges are rogue juristocrats. The bias allegation is a nonstarter.
Second, DOJ argued that Texas's decision to keep filing in single-judge divisions "raises questions" and "creates a perception." What those questions and perceptions are, DOJ could not really say. Consider this colloquy:
THE COURT: Right. And so you said after -- after that, it starts to raise questions. What questions does it raise?
MR. REUVENI: It's a perception problem.
THE COURT: What --
MR. REUVENI: It's a perception problem.
THE COURT: What is that perception?
The exchange goes on, and the lawyer said that Texas's filings "casts this cloud over the whole proceeding." He added, "And so now we have justices of the Supreme Court questioning the hard work of the lower courts, and then we have the public asking: Why is Texas filing in these—in these—only these specific divisions?"
Later Tipton asked if DOJ shared that perception. The answer was no.
THE COURT: Do you share that perception?
MR. REUVENI: Do I share the perception that Texas—that I just described? Yes. I wouldn't have signed this brief —
THE COURT: No, no, no, no. I'm saying: Do you share the perception that Texas has gotten—Texas is picking me because they think that I'm going to rule in their favor? Do you share that perception? Do you think that—do you think, starting off right now, that—that I'm already going to rule against the United States?
MR. REUVENI: No. I don't—I do not—I cannot say—I cannot say whether we believe that you will rule against us.
To summarize, some unknown members of the public (who may be on the faculty of the UT Law School) have this perception. DOJ does not share this perception. But DOJ filed the motion on the basis of this perception.
THE COURT: I'm asking it a different way. Mostly, what you're saying is you're not worried about whether or not you're going to get a fair trial. You're worried that the Court is damaged by the fact that there is a public perception that I'm not going to be fair. Is that…
MR. REUVENI: That's part of it.
Are federal judges (not named John Roberts) supposed to base their decisions on the basis of public perception? DOJ says, "sort of."
Third, assuming that such a "perception" exists, does DOJ's motion help, or exacerbate that perception?
THE COURT: It's not that you're—it's not that you're not publicizing it. It's that you're kind of furthering the public perception concern by filing a motion that says that single-judge divisions are sketchy. I mean, that's what—it's hard for someone to look at it and say, Well, what's the problem? Well, Tipton must be in the tank, you know. And like I said, if you said, No, Tipton is not automatically biased against us; he can provide fair and impartial—I think the public perception, which is 100 percent of what your single-judge division motion is about, public perception, that, and the fact that my opinion is stayed until a court of appeals gets to look at it seems, to me—I don't know how a public that doesn't want a particular result, regardless of what the law says, would—could look at that and go, Oh, okay, well, that makes sense. . . . Like I said, whether or not you issue a press release—I'm not saying that—but the fact that you filed a motion which kind of reinforces what I think everybody agrees is a false premise, which is, is that—that Judge Tipton is going to be biased or prejudiced in favor or against the parties in this case.
Reuveni, speaking for himself, did not disagree!
MR. REUVENI: Again, I can't find really anything to disagree with there, Your Honor, speaking for myself. I just—to me, that seems incomplete.
It seemed very obvious Reuveni personally agreed with Tipton. Reuveni was fighting with one arm tied behind his back. I think DOJ would have been better served by letting a political appointee argue the case, who actually believed the nonsense on Twitter. A lawyer who has been in the trenches at federal programs understands how problematic this motion was.
Couldn't DOJ help to push back against this "perception" by publicly stating that Judge Tipton will resolve the matter fairly?
THE COURT: On this issue about the public concern about fairness, don't you think you could go a long way toward addressing any concern the public might have by just saying, in public, what you said here on the record as an officer of the Court? "We don't have any concern about Judge Tipton. He will give us a fair trial. We don't have any concern about the way he's presided over previous cases." Wouldn't that go a long way to addressing any public perception issues? . . . Don't you think if the public heard the Department of Justice say that, that it would go a long way towards addressing your public perception concern?
Reuveni could only reply with "I know you are but what am I?"
MR. REUVENI: I mean, I think that's a fair point, Your Honor, and I think, if you're raising the question as to why doesn't the Department of Justice say something to that effect, I would also wonder why doesn't Texas tell the public why it files only in front of six or seven judges.
Texas was represented by Lief Olson, who is a friend and colleague. He addressed the public perception argument directly:
MR. OLSON: Inasmuch as that actually is a public perception, Your Honor, yes, that could—that could happen. I doubt that that actually is the public perception so much as it is a couple of law professors beating a drum on Twitter. I have never heard anybody with any actual knowledge of the federal court system think that a judge was in the tank for one party or another.
Lief would know. He has experience facing down progressive Twitter mobs.
I fear DOJ has been captured by the solipsistic Twitter #LawProf echo chamber.
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