The shopping forum is not new. Judge shopping is not new. Litigants have strategically filed cases in single judge chambers since single judge chambers have existed. However, in recent years, this practice has become intolerable. The writers of Slate and Vox launch an endless series of attacks on a handful of district court judges in Texas. Law professors on Twitter amplify these claims. And now the Justice Department has embraced that argument. Kind of.
It is important to point out what the DOJ did not do. The DOJ has not filed any motions for recusal on the grounds that these judges are biased. The DOJ did not ask the Fifth circuit to remove one of these judges. The DOJ did not file a motion for mandamus. The DOJ has not lobbied Congress to change the judicial divisions in Texas or any other state. The DOJ did not ask Congress to eliminate all single-judge divisions. The DOJ also did not file a motion for sanctions against the Texas Attorney General for abuse of process. The DOJ also did not file a misconduct complaint against Texas AG’s attorneys. All of these actions would be the appropriate vehicles if, in fact, there was some kind of wrongdoing. The DOJ didn’t even argue that the venue was inappropriate. The DOJ took none of these acts. Instead, the DOJ has filed a series of motions that would not actually determine whether there is genuine wrongdoing by the judges or the Texas attorney general.
What did the 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 the DOJ file these petitions? The precise reasoning is not entirely clear.
Last week, Justice Tipton in Victoria held a audience at the request of the DOJ. DOJ sent Erez Reuveni, a career lawyer in federal programs, to represent the government. Three themes repeated throughout the hearing.
First of all, Did the DOJ think Tipton was biased? The answer was consistently, No.
THE COURT: No. What I am — what I want is for you to be frank. I have thick skin. Lord knows me best. And so my question is – I just want to know: does the United States think that I can be fair and impartial?
Mr. REUVENI: The United States thinks that Your Honor can be fair and impartial. That’s why we are do not file a motion for recusal.
The DOJ did not file a motion for recusal and made no allegation of bias.
THE COURT: And that’s what — I mean, that’s what you said. Do you believe that I would preside over this affair fairly and impartially whether he stayed in Victoria or whether he went to Corpus Christi?
Mr. REUVÉ: YesYour Honor.
Judge Tipton pointed out that he has systematically suspended his decisions, so that the Fifth Circuit or the Supreme Court can intervene.
THE COURT: That’s true. And so – so my – my opinions don’t even take effect until at least three Fifth Circuit judges have had a chance to review my work and grade my papers. I mean, my ruling doesn’t – and after that, with the Supreme Court cases, it was immediately appealed to the United States Supreme Court. So we had nine very smart people who had the opportunity to review my decision, and it only took effect when the Court of Appeals and the Supreme Court had a chance to review it. Don’t you think it could also go a long way to solving public perception issues if they learn that my decision doesn’t go into effect until an appeals court clears it? . …
THE COURT: No, no. No, I’m telling you that in any case, the United States moved for a stay, and I granted hethen it goes to the Supreme Court — then it goes to the Court of Appeals, and it’s up to them to decide how long this stay stays in place.
Justice Tipton’s rulings are not the actions of someone intent on single-handedly distorting national politics, contrary to the incessant social media posts.
I spoke to the Washington Post for their profile of Judge Kacsmaryk. It’s true enough that Judge K beats 1,000 in the fifth circuit. He has yet to be overthrown by his superiors. Of course, critics will say that the Fifth Circuit is filled with rabid right-wing reactionaries. Still, our humble circuit has a fair share of moderates and progressives. None of them ever claimed that Kacsmaryk, Tipton or Hendricks were incapable of being fair. None of these judges have been removed from the cases. (The Fifth Circuit reassigns cases, for example, against Judge Hughes.) Moreover, on appeal to the Supreme Court, none of the justices argued that these justices were rogue juristocrats. The allegation of bias is a non-start.
Second, the DOJ argued that Texas’ decision to continue filing in single-judge divisions “raises questions” and “creates a perception.” What those issues and perceptions are, the DOJ couldn’t quite say. Consider this symposium:
THE COURT: That’s true. And so you said after — after that, it starts to raise questions. What questions does it raise?
M. REUVENI: It is a problem of perception.
THE COURT: What —
M. REUVENI: It is a problem of perception.
THE COURT: What is that perception?
The exchange continues and the attorney said the Texas documents “throw this cloud over the whole proceeding.” He added: “And now we have Supreme Court justices questioning the hard work of the lower courts, and then we have the public asking: why is Texas filing in these – in these – only these specific divisions?”
Later, Tipton asked if the DOJ shared this perception. The answer was no.
THE COURT: Do you share this perception?
Mr. REUVENI: Do I share the perception that Texas – which I have just described? Yes. I would not have signed this memoir –
THE COURT: No, no, no, no. I say, do you share the perception that Texas has had — Texas chooses me because they think I’m going to rule in their favor? Do you share this perception? Do you think that–do you think, starting right now, that–that I’m ever going to speak out against the United States?
Mr. REUVENI: No. I don’t… I don’t… I can’t say… I can’t say if we believe you’re going to reject us.
In short, some unknown members of the public (who may be UT Law School faculty) have this perception. The DOJ does not share this perception. But the DOJ filed the petition based on that perception.
THE COURT: I put the question differently. Most of the time what you’re saying is you don’t care whether or not you get a fair trial. You fear that the Court will be prejudiced by the fact that there is a public perception that I’m not going to be fair. Is it…
MR. REUVENI: That is part of it.
Are federal judges (not named John Roberts) supposed to base their decisions on public perception? DOJ says, “sort of”.
Third, assuming such a “perception” exists, does the DOJ motion help or exacerbate that perception?
THE COURT: It’s not that you — it’s not that you don’t advertise he. It’s that you kind of bolster public perception by filing a motion that says single judge divisions are summary. I mean, that’s what — it’s hard for someone to look at it and say, Well, what’s the problem? Well, Tipton must be in the tank, you know. And like I said, if you said, No, Tipton isn’t automatically biased against us; he can provide fair and unbiased information – I think the public perception, which is 100% of what your single judge division motion is about, the public perception, and the fact that my opinion is suspended until what an appeals court would look at it seems to me – I don’t know how an audience that doesn’t want a particular outcome, regardless of what the law says, could – could look at this and say, Oh, okay , well, that makes sense. . . . As I said, whether or not you issue a press release – I’m not saying that – but the fact that you filed a motion that kind of reinforces what I think everyone agrees with is a false premise, which is that – that Judge Tipton is going to be biased or have bias for or against the parties in this case.
Reuveni, speaking for himself, did not disagree!
MR REUVENI: Again, I can’t really find anything that I disagree with, Your Honour, for my part. I come – to me it seems incomplete.
It seemed very obvious that Reuveni personally agreed with Tipton. Reuveni was fighting with one arm tied behind his back. I think the DOJ would have been better served by letting a political appointee argue the case, who actually believed the nonsense on Twitter. A lawyer who has been in the trenches of federal programs understands how problematic this motion was.
Couldn’t the DOJ help push back against this “perception” by publicly declaring that Judge Tipton will resolve the case fairly?
THE COURT: On this issue of the public’s concern about fairness, don’t you think you could do a lot to address any concerns the public might have by simply saying, in public, what you said here in as an officer of the court? “We have no concerns about Judge Tipton. He will give us a fair trial. We have no concerns about the way he presided over previous cases.” Wouldn’t that go a long way to solving public perception issues? . . . Don’t you think that if the public heard the Department of Justice say that, it would go a long way to addressing your concerns about public perception?
Reuveni could only respond with “I know you are but what am I?”
MR. REUVENI: I mean, I think that’s a fair point, Your Honour, and I think if you raise the question of why the Department of Justice doesn’t say anything to that effect, I would also wonder why Texas explains to the public why it only testifies before six or seven judges.
Texas was represented by Lief Olson, who is a friend and colleague. He addressed the public perception argument directly:
MR OLSON: To the extent that it is in fact a public perception, Your Honour, yes, it could – it could happen. I doubt that’s actually public perception, because it’s a few law professors beating a drum on Twitter. I have never heard anyone with real knowledge of the federal justice system think that a judge was on one side or another.
Lief would know. He has experience face down progressive Twitter mobs.
I fear the DOJ has been captured by the solipsistic #LawProf Twitter echo chamber.