Judge James C. Ho’s Remarks to the Midland County Bar Association
[I heard about Judge Ho’s speech and thought it relevant to some of the recent discussions on this blog, so I asked him if I could publish it. He kindly obliged.]
Midland County Bar Association
April 15, 2024
Thank you, Judge Counts, for the kind introduction. I’m honored to follow in the footsteps of your previous keynote speakers—including Judge Counts and Judge Junell—past and present members of my court, like Chief Judge Richman and Judge Prado—as well as distinguished judges from our state court system.
Gatherings like this recognize the modest but important role that the judiciary plays in resolving our Nation’s disputes.
Here in Midland, a single federal district judge has the solemn duty to resolve all of the disputes that arise under Article III of the Constitution. Judge Counts has spent his entire life serving his country and his community—the United States Army, the Texas Army National Guard, a state and federal prosecutor, and fifteen years on the federal bench.
The people of Midland can take comfort that their rights are protected by such a devoted and publicly spirited member of their community.
I.
But lately, some critics of the judiciary have chosen to bemoan, rather than celebrate, the fact that many Americans across the country are served by a single, local federal district judge.
Single-judge divisions have recently come under sharp attack from certain political quarters. And now, the Judicial Conference of the United States has decided to credit these political attacks.
On March 12, the Judicial Conference announced that certain litigants who want to prevent a federal or state law or policy from taking effect should be forced to litigate before a judge in a randomly chosen division—no matter how large the judicial district, and no matter how far away the randomly-chosen judge.
The Judicial Conference isn’t shy about why they’re doing this. They’re targeting single-judge divisions. Its announcement repeatedly mentions “single-judge divisions” as the purported evil they’re trying to combat.
Moreover, the Judicial Conference briefed a group of reporters on this new policy, and the extensive press coverage that resulted from that presentation makes clear that their focus is indeed single-judge divisions—especially those here in Texas.
Consider how this proposal would operate in practice. Whether this new policy will affect you, and your ability to protect your constitutional rights, depends dramatically on where you live.
If you live in one of our biggest cities—in Dallas or Houston—nothing should change: You’ll likely still appear before a judge who lives in your community.
But if you live somewhere else, you’ll likely be forced to appear before a judge who lives far away. In big states like Texas, we’re talking about hundreds of miles away.
Just look at how this proposal would affect people in Midland. There are 18 federal district judges across the Western District of Texas. The majority of those judges live elsewhere, in places like Austin, San Antonio, and El Paso—hundreds of miles away from Midland.
So if the Judicial Conference proposal is adopted, a citizen of Midland who seeks relief will likely be forced to litigate before a judge who lives hundreds of miles away.
The same is true with the single-judge division in Amarillo—the division that has received the sharpest political criticism. Under this proposal, citizens in the Panhandle will more likely than not be forced to litigate their rights before a federal judge 400 miles away in Dallas.
II.
We shouldn’t impose greater burdens or different rules on Americans, just because they live outside our Nation’s largest urban centers. The Constitution protects every citizen—not just those who live in big cities.
So I’m not surprised that the Judicial Conference proposal was immediately met with a firestorm of opposition—not just from federal judges, but also from leading members of the United States Senate, as well as prominent members of the legal academy.
I was one of those early voices of opposition within the judiciary. And with your indulgence, I’ll spend a few minutes tonight explaining why I continue to oppose the Judicial Conference proposal.
III.
I’ll begin by stating the obvious. There’s nothing inherently wrong or suspicious about the fact that some judicial divisions in our federal system have only one resident district judge.
I spend many of my weekends in a small, one stoplight town in Texas. We have just one supermarket in that town.
Now, do I immediately assume that something illegal or untoward has happened, just because there’s only one supermarket? Some blatant violation of federal antitrust law?
Of course not. It just means the town only needs one grocery store—not two.
And just as one grocery store doesn’t mean monopolization, one federal district judge doesn’t mean corruption.
Now, we could make people travel long distances to get to a federal judge—just like we could make people travel long distances to get to a grocery store. But that would not serve the American people well.
So it’s not surprising that Congress has chosen to authorize the judiciary to hold court, not just in America’s biggest cities, but in countless other cities across the country—to ensure that all Americans have the best possible access to the federal court system.
And make no mistake: It’s up to Congress—not the judiciary—to decide where we can hold court. In fact, the first bill that Senator Cornyn ever enacted into law was a bill I got to work on as his chief counsel—a bill authorizing the Eastern District of Texas to hold court in Plano.
Article I, Section 8 of the Constitution vests in Congress the authority to “constitute Tribunals inferior to the supreme Court.” So it’s Congress that decides how many federal districts and divisions will exist in Texas, and where in Texas judges can sit.
IV.
So if it’s Congress that gets to decide that Americans in smaller cities and towns will have access to the federal courts, why is the Judicial Conference doing this?
The problem, they say, is forum shopping—litigants choosing to file suit in a particular location for strategic reasons.
I first studied the issue of forum shopping two decades ago, back when I was on Capitol Hill. I learned that it’s very important to explain exactly what you mean, if you say you’re concerned about forum shopping.
It’s important to explain, because the whole point of our adversarial legal system is that attorneys will do their best to zealously advocate for their clients. Indeed, we require them to.
Here’s one recent example:Â A few weeks after the Judicial Conference announcement, Bloomberg ran an article with the following headline:Â DOJ’s Apple Suit Filed in New Jersey for Friendly Third Circuit.
The article begins with this opening line:Â “The US Justice Department’s choice of New Jersey to file its landmark antitrust lawsuit against Apple Inc. was likely motivated by driving any future appeals to a circuit court relatively open to cracking down on monopoly power.”
Is Attorney General Merrick Garland going to fire these DOJ lawyers for engaging in this blatant forum shopping? I’m guessing not.
That’s not even the highest profile example of recent forum shopping by DOJ. Last year, DOJ filed suit against Texas, challenging the State’s efforts to secure the border in Del Rio.
There’s a federal court in Del Rio. And other similar suits have been filed in Del Rio.
Yet DOJ filed in Austin—not Del Rio. It’s pretty obvious that DOJ’s choice of forum was strategic. And it has not gone unnoticed. One district judge pointedly observed that “the United States sued Texas related to events occurring in the Western District of Texas’s Del Rio Division, but it chose to bring suit over 200 miles away in the Austin Division.”
I don’t expect Attorney General Garland to punish these DOJ lawyers for blatant forum shopping, either.
So let’s not pretend that strategic thinking about venue selection is the exclusive province of one type of litigant or one end of the political spectrum. It happens regardless of who contro
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