Chief Justice John G. Roberts Jr. famously declared that there were no Trump judges or Obama judges. He is about to get a real test on that matter.
A law professor has filed a brief with the Supreme Court urging the justices to rule against Texas in a lawsuit over the Biden administration’s handling of immigration enforcement. The lawsuit claims Texas Attorney General Ken Paxton has been unethically “judge shopping” by looking for Republican-appointed judges to handle his cases.
Stephen Vladeck, a professor at the University of Texas School of Law, said Mr. Paxton looks for courthouses dominated by Republican judges, many of them appointed by President Trump, to improve his chances of success.
Mr. Paxton has filed 27 cases against President Biden‘s policies, 19 of them in Texas. Of those, all but one is being overseen by a judge appointed by a Republican president, Mr. Vladeck said.
“This is more than forum-shopping, it is thinly veiled judge-shopping,” the professor wrote in a brief filed with the high court.
He said the specific case before the justices was “a perfect example.”
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Texas challenged Homeland Security Secretary Alejandro Mayorkas’ policy implemented last year limiting immigration agents’ and officers’ authority to arrest and oust illegal immigrants.
He said they needed to have a reason beyond just being in the country illegally, such as a lengthy criminal record. Those with older crimes and immigrants supporting families were supposed to get a break.
Mr. Paxton brought his lawsuit to a courthouse in Victoria, Texas.
Mr. Vladeck said there is nothing special about Victoria, a moderately sized city that doesn’t sit near the U.S.-Mexico border, other than it has one judge to whom new civil cases are assigned: Judge Drew B. Tipton, a Trump appointee.
“By filing this case in Victoria, Texas was able to select not just the location for its lawsuit, but the specific federal judge who would decide this case: a judge Texas likely believed would enjoin the Guidance — and who in fact did so, even as other courts have rejected similar challenges,” Mr. Vladeck wrote.
The professor pointed to comments Chief Justice Roberts made in 2018 after Mr. Trump blasted an adverse court ruling on immigration policy from what he described as an “Obama judge.”
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“We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Chief Justice Roberts said in an interview with The Associated Press at the time. “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”
Mr. Vladeck‘s argument to the high court is that there are indeed politically polarized judges and Mr. Paxton has found a way to ensure they hear his cases.
Though the seat of state government is Austin, Mr. Paxton has not filed any of his Biden challenges at the federal courthouse there. Mr. Vladeck said that’s because the attorney general has a 50-50 chance that his case will go to a judge appointed by President Obama.
Mr. Vladeck said ruling against Texas at this stage in the case would send a message to Mr. Paxton and others about judicial independence.
“On the other hand, should the Court sit by silently while Texas hand-selects judges to challenge federal action, future administrations will almost certainly face similar judge-shopping from politically adverse states — and the credibility of the federal judiciary as a whole will suffer,” Mr. Vladeck argued to the justices.
Mr. Paxton, who has had a successful run of court challenges to Mr. Biden, didn’t respond to a request for comment for this article.
Josh Blackman, a professor at South Texas College of Law, said he thinks Mr. Vladeck‘s argument is a stretch.
He said every lawyer shops for the right venue — including the Democratic attorneys general who challenged Mr. Trump‘s executive moves in federal courts.
Maryland’s attorney general regularly filed challenges in the courthouse in Greenbelt rather than in Baltimore, Mr. Blackman said.
“They obviously made a decision that venue is better,” he said.
He said filing cases in San Francisco or Manhattan essentially means a “very high percentage you get a progressive judge” no matter which president made the appointment, given the power of Democratic senators from those states in deciding federal district judgeships.
Mr. Paxton does have one particular advantage. Texas has broken down its four judicial districts into smaller divisions, so targeting individual judges can be more of an exact science for litigants in the state.
That’s a problem for Congress to solve, Chief Justice Roberts suggested in his 2021 report on the state of the judiciary. He said senators raised the issue of being able to select a particular judge by gaming single-judge courthouses.
He said competing priorities are at stake, including the ability of litigants to have judges tied to their communities.
Ilya Shapiro, director of constitutional studies at the Manhattan Institute, said courts should enforce existing laws but judges are “powerless” to create rules governing case-filing decisions.
“The only thing worse than the age-old litigation practice of forum- and judge-shopping is inventing judicial rules against it,” he said. “If Congress wants to stop this sort of thing, whether practiced by red states, blue states or private litigants, it can create new venue rules or restructure federal districts and judgeships.”
Challenges to Trump immigration policies often seemed to end up before judges appointed in the Obama years, and Mr. Trump fared poorly in those courtrooms. When cases landed before Republican-appointed judges, his record was somewhat better.
Now it’s Mr. Biden who has mixed results in courts, with a series of major losses balanced by a few high-profile wins.
Last month, the president prevailed at the Supreme Court in a case in which Mr. Paxton challenged the end of the Trump-era “Remain in Mexico” border policy. Lower courts ruled against Mr. Biden, but Chief Justice Roberts authored a 5-4 ruling vacating those adverse decisions and sending the case back for more argument.
Mr. Biden is hoping for another win with the case involving Homeland Security’s enforcement activities.
Mr. Vladeck, arguing that Texas is forum-shopping, pointed to a similar challenge that Arizona brought in an Ohio courthouse.
In that case, the district judge ruled against Mr. Biden‘s stance, just like the Texas judge. But the 6th U.S. Circuit Court of Appeals stayed the lower court’s ruling. In the Texas case, the 5th Circuit backed Judge Tipton.