Republicans have referred all sorts of problems to judges they know to be compassionate and unreasonable; For example, there is a 5th circuit court in north Texas where sanity reliably dies.
Here, the Trump judge overturned the FDA’s approval of the abortion pill, a federal organization over which he has no oversight.
Senate Majority Leader Chuck Schumer (D-NY) is calling it out, urging to end the “dangerous practice.”
In a letter sent to PoliticusUSA by the Chairman’s Press Office, the Senate Majority Leader noted that “litigants can now effectively choose which judge hears their cases, thereby undermining free and fair trials,” and called on the Chief Justice of the Senate to US District Court to do so Northern District of Texas, David Godbey, to reform the district court’s method of assigning cases.
Schumer highlighted the bill as apparently unfair: “Although there are a total of 16 judges who might hear cases, many departments in the county only have one or two judges who are assigned when a civil case is filed there.” The plaintiffs have unfairly exploited this practice to select district judges they believe agree with their cases.”
The only way Republicans could find a judge right-wing enough to try to take out the FDA without knowledge or expertise on the subject was to find a Trump-appointed judge with a history of (some of it hidden in the pending confirmation) far-right activism on abortion and LBGTQ rights.
They found that man in Judge Matthew Kacsmaryk, a controversial appointee with a history of hostility toward the LGBTQ community and women’s health, and now the sole U.S. District Judge in the North Texas District’s Amarillo Division.
Schumer objected to the fact that since Kacsmarky is the only judge in that department, every case filed there is assigned to him. This works like making a favorable decision instead of assigning a case.
“Currently, Judge Kacsmarky is the sole judge in the Amarillo Division, and subsequently every case filed there is inevitably assigned to him. In his previous judgments, Kacsmarky has shown himself to be sympathetic to the anti-abortion movement and it is clear that he was specifically targeted for this purpose. His ruling was unprecedented — it is the first time a judge has withdrawn a drug from the market over FDA objections.”
Schumer then pointed out that there is no legal obligation to operate in this way, citing recent precedent in Texas over concerns about judge shopping: “Last year, the Western District of Texas revised its case assignment rules for those filed in Waco Patent cases changed.”
The Democratic leader also pointed out that other counties “like the Northern District of New York — allocate cases at random among all currently serving district judges.”
Judge shopping has spiraled out of control in Texas insofar as the Justice Department has accused Texas of directing its litigation against the Biden administration to courthouses, “often in remote parts of the state — where a single, pre-designated judge is most or assigned to all cases.”
That sounds like the opposite of justice.
The Justice Department made this point in a brief filed February 28, 2023 (edited for clarity and brevity):
The Texas Attorney General’s office has now admitted that it brought this case in the Victoria Division to ensure it was heard by Judge Tipton: “The case is frankly being brought in Victoria, Your Honor, based on our experience with you .”
The plaintiffs “handpicked [a particular judge] to adjudicate on the particular case or application.”
This admission is critical. “Judge buying undoubtedly disrupts the proper functioning of the justice system.” Standing Comm. to the discipline of the US Dist. Kt. for cents. Dist. from California to Yagman…
“This is done by “contraven[ing] the very purpose of random allocation, which is to prevent judge buying by a party and thereby increase public confidence in the allocation process.” Coates v. SAIA Motor Freight Line, LLC.
The Justice Department has lost two “judge-buying” cases in Texas, the second being the Kacsmaryk abortion-pill case.
The Washington Post explained in March how judge-shopping works to achieve the desired outcome: “In the three trials over Biden administration policy, the attorneys general of Texas and a group of other states have filed in rural federal courthouses, each… single judges have a reputation for ruling against the policies of the democratic government. In contrast, most federal judicial departments across the country have multiple judges who are randomly assigned to cases as they are filed.”
At the risk of repeating myself, conservatives at CPAC literally took lessons from Hungary’s Prime Minister Viktor Orban on how to achieve autocratization in a free, democratic country. (The instruction is intentionally mislabeled, it does not admit its true aim.)
There have been several approaches to involving the media and taking control of education (as is already happening here in Florida, for example), but the major achievements have come from using the court system to make it legal to steal people’s rights and give more power to your party.
Back in 2018, Orban and his 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 deal with cases that have a direct impact on basic human rights, such as elections, the right to asylum, the right to assembly and complaints about police brutality.”
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’, ie a constitutional system in which elections take place but democratic norms and standards are not respected, say MEPs.”
There is a lack of respect for democratic norms and standards.
We are witnessing the lack of respect for democratic norms and standards throughout America
The question now is, does anyone have the will to tackle it before it’s too late?
Schumer’s letter is a good start and the DOJ has already fought, but all of those fights now need to be properly escalated. There’s no time to wait.
The whole letter:
Dear Chief Justice Godbey,
I am writing to you today, urging you to reform the way cases are assigned to judges in your federal district. As Chief Justice of the United States District Court for the Northern District of Texas, you have the authority to file orders that govern how cases filed in your district are assigned to judges. Although the Northern District has twelve active judges and another four senior judges still hearing cases, your orders provide that civil cases filed in many departments are always assigned to a single judge or one of only 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 only two judges. As a result of your recent assignment orders, plaintiffs in your district can now effectively choose the judge to hear their cases.
Not surprisingly, litigants have taken advantage of these orders to select individual district judges deemed particularly benevolent to their claims. The state of Texas itself is the most egregious example. She has sued the Biden administration at least 29 times in Texas federal district courts, but she has not even filed any 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 designated preferred judge, or one of a handful of preferred judges, hears 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, which in its case challenged the FDA’s approval of mifepristone.
Nothing requires the Northern District to let plaintiffs choose their judges in this way. Federal laws divide the Northern District into seven divisions, but that’s just one geographic division. The purpose of the split is to reduce travel times for juries, defendants and other local litigants by allowing cases to be tried locally. In the case of electronic filing in particular, this division does not have to affect the court assignments at all. Other circuit courts with many rural chambers arbitrarily apportion civil cases among all of their judges, regardless of where the case is filed. Like the Northern District of Texas, the Northern District of New York is a geographically large district divided into many divisions. But the Northern District of New York assigns all of its judges to all of its divisions and randomly allocates all cases to all, regardless of where the cases are filed. Thus, a litigant in the Northern Circuit of New York cannot select his judge by filing suit in Plattsburgh rather than in Utica. Missouri’s Western District 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 randomized between all 11 active judges in the district and one senior Judges are assigned.
The Northern District of Texas could and should enact a similar rule for all civil matters. Currently, federal law 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. However, if this flexibility still allows litigants to select their preferred judges and effectively guarantee their preferred outcomes, Congress will consider more stringent requirements.
Charles E Schumer
United States Senator
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