Critics often accuse the Texas Attorney General of improper forum shopping--picking certain district courts in Texas where there are extremely high odds of drawing a specific judge. This criticism should be directed at Congress, which creates single-member districts. (Chief Justice Roberts made this point in his end-of-year message.) The Attorney General, like any other litigant, should select the forum that is best suited for his case. And forum shopping is rational. Moreover, it is unfair to criticize the judges who receive these forum-shopped cases. They do not have control over their dockets--unless the Chief Judge randomly takes a certain percentage of their cases, which does happen.
Still, conservatives are not the only litigants who forum shop in Texas. Progressive groups have found their court of choice. No, it is not in Brownsville or Amarillo or Victoria or Tyler or Lubbock or Galveston or Fort Worth. It is the U.S. District Court for the Western District of Texas, Austin Division. By my count, virtually every high-profile litigation brought against the state of Texas begins in that division. The division has two active district court judges, one appointed by President Obama and one appointed by President George W. Bush. And there is one senior judge appointed by President George H. W. Bush. On paper at least, the bench looks balanced, perhaps even with a slight conservative tilt. But in reality, the Austin division is the Wichita Falls for progressives. This forum selection appears neutral--sue the Governor and Attorney General in the state capital--but the choice is quite strategic.
I've lost count of how many high-profile Texas laws and policies were preliminarily enjoined in that division. Consider a few: the Texas Israeli boycott law, the Texas social media law, the S.B. 8 fetal heartbeat law, the Texas ban on masks in schools, a limitation on ballot drop-off locations, restrictions on abortion during the pandemic, law concerning fetal remains, the abortion law at issue in Whole Woman's Health v. Hellerstedt, Planned Parenthood's ability to participate in Medicaid, and so on and so on. (I've also had my fair share of losses in that division--which we selected--and I've always felt like I had a fair shake.) Invariably, most of these injunctions are stayed in the Fifth Circuit.
