“One of the biggest impediments to President Joe Biden’s ability to govern is a small crew of Republican-appointed federal trial judges, all of whom sit in Texas.
In August of 2021, for example, a Trump-appointed judge named Matthew Kacsmaryk ordered the Biden administration to reinstate a Trump-era immigration policy, known as “Remain in Mexico,” which forced many migrants to live in awful conditions on the Mexican side of the US/Mexico border. Although the Supreme Court eventually determined that Kacsmaryk egregiously misread federal immigration law, it left his order in place for nearly a year — and the Court’s most recent decision concerning Remain in Mexico makes it very easy for Kacsmaryk to seize control of federal border policy once again.”
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” This one Trump judge’s ability to override an elected president’s policies and assume the powers of a Cabinet secretary is just one aspect of a much larger problem. With the Supreme Court’s tacit blessing, Texas officials and other right-wing litigants can handpick the trial judge who will hear their challenges to Biden administration policies. And when those handpicked judges overreach in ways that even this Supreme Court deems unacceptable, decisions by men like Kacsmaryk can remain in place for as much as a year — effectively replacing governance by an elected presidential administration with rule by unelected Republican judges.
In another, similar case, the Supreme Court allowed a Trump judge named Drew Tipton to temporarily strip Homeland Security Secretary Alejandro Mayorkas of much of his authority over Immigration and Customs Enforcement (ICE). This is the same Drew Tipton who issued a legally dubious order six days after Biden took office, which blocked the Biden administration’s call for a 100-day pause on deportations while the new administration was figuring out its immigration policies.
And then there’s Judge Reed O’Connor, the Fort Worth, Texas, judge known for rubber stamping nearly any legal outcome requested by Republicans. O’Connor is best known for his order in Texas v. United States, holding that Obamacare must be repealed in its entirety. That decision was so poorly reasoned that seven justices — including four Republican appointees — eventually ruled that no federal judge had any business hearing Texas’s anti-Obamacare lawsuit in the first place.
But that experience did nothing to humble the Rubber Stamp of Fort Worth. In January, O’Connor forced the US Navy to deploy personnel that it deemed unfit for deployment because they are not vaccinated for Covid-19. The Supreme Court blocked most of O’Connor’s ruling in March, with Justice Brett Kavanaugh writing that the highly partisan judge “in effect inserted [himself] into the Navy’s chain of command, overriding military commanders’ professional military judgments.””
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“The fact that all these cases — and this is just a sample of the many policy-setting lawsuits being shunted to a handful of the most conservative judges in Texas — are winding up before a few GOP-appointed judges is not a coincidence. It is a deliberate strategy, made possible by procedural rules that effectively allow litigants to select which judge will hear their lawsuits, and by all appearances, intentionally pursued by the Texas attorney general’s office.”
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“the Biden administration’s policies are routinely blocked, not because an impartial judge gives those policies a fair hearing and determines them to be illegal, but because Republican litigants can ensure that lawsuits seeking to undermine President Biden are heard by some of the most partisan judges in the country.”
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“the Texas AG’s office has not filed a single case in Austin — the city where that office is actually located — a choice that most likely can be explained by the fact that half of all federal cases filed in Austin are heard by Judge Robert Pitman, an Obama appointee.”
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“Although the Supreme Court has, at times, disagreed with the judges Texas’s Republican leaders selected to hear their lawsuits, it’s done nothing to discourage the Texas AG’s judge-shopping. Indeed, if anything, it’s encouraged it.”
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“If the courts want to solve the problem of judge-shopping, it would not be hard for them to do so. One solution is to apply the same rule to Texas’s anti-Biden litigation as the Western District of Texas now applies to patent litigation — if a party seeks an order blocking a federal policy, that case will be randomly assigned to any judge within the entire district court where it is filed, not just one in the smaller division.
Alternatively, a court could assign lawsuits seeking a nationwide injunction against a federal policy to a panel of three judges. That’s the solution Fifth Circuit Judge Gregg Costa proposed in a 2018 piece published by the Harvard Law Review’s blog.
In any event, the details of such a solution don’t matter all that much. The important thing is that litigants who are actively trying to sabotage the United States government should not be allowed to handpick judges who share their agenda. For the moment, however, the courts seem to lack the will to address this problem. Texas Republicans can shop around for the judges they want, and that seems to suit a Supreme Court dominated by Republican appointees just fine.”