Department of Justice v. Texas Judges
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 Su
Article from Reason.com
