Home / General / Anti-democratic forum shopping is a problem Congress could fix

Anti-democratic forum shopping is a problem Congress could fix


Steve Vladeck notes some procedural reforms Congress could pass that would make it much harder for lawless Republican judges to set national policy on a wide array of issues:

For the 26th time in two years, the Texas attorney general Ken Paxton recently filed a lawsuit in federal court challenging a Biden administration policy. The suit, which seeks to wipe out a new Labor Department rule about the investment of pension trust assets, wasn’t filed in Austin, the state capital, or in Dallas, where the Labor Department’s regional offices are, or anywhere else with a logical connection to the dispute.

It was filed in Amarillo. Why Amarillo? By filing there, Mr. Paxton had a 100 percent chance of having the case assigned to Judge Matthew Kacsmaryk — appointed to the bench by President Donald Trump in 2019 and a former deputy general counsel to the First Liberty Institute, which frequently litigates religious liberty cases before the Supreme Court.


But if judge shopping is a problem in the patent context, it’s a problem outside of it as well. And the fixes are both easy and obvious. District courts can, as Texas’s Western District just did, change their rules of judge distribution on their own — without any national legislation. District courts can also agree to transfer cases out of their single-judge divisions to avoid the appearance of procedural manipulation, which the Biden administration has asked Judge Tipton to do for the most recent immigration challenge filed by Texas in Victoria.

Failing that, Congress can require district courts, when dividing their business, to ensure that no case has a greater than 50 percent chance of being assigned to a single judge. Congress can also require that suits seeking nationwide relief against a federal policy be heard by three district judges, not one, to avoid (or at least to mitigate) the judge shopping that has become so prevalent.

Whatever the solution, doing nothing will simply accelerate what is already a race to the bottom — in which handpicked, outlier district judges for whom nobody voted are increasingly able to dictate federal policies on a nationwide basis.

Right now, this practice may be beneficial for Republicans. But if nothing changes, you can be sure Democrats will try to take advantage when the next Republican sits in the White House. And regardless of who benefits in the short term, in the long term, the proliferation of this practice will be disastrous for the rule of law.

Easy in theory to fix; hard in practice.

This is one reason why the 6-3 Republican supermajority on the Supreme Court is so devastating for American democracy — the potential threats in the last graf aren’t really credible. Republicans don’t have to worry very much about losing control of the top appellate court for the foreseeable future, and so any victory liberal litigants can win with a favorable district court ruling can be quickly taken care of, first via the shadow docket and then on the merits. So a Republican House will not pass any reform, and for very obvious reasons the 5th Circuit is not going to restrain the power of other Republican hacks. And as long as the filibuster is in place, a democratic Congress isn’t going to be able to do anything about it either. A 5-4 Court with Democratic control of the Senate could keep Republicans a little honest; now, they have no reason to restrain themselves. September 18 and October 26 2020 were very dark days for this country.

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