File this under “About damn time”, even if it eventually comes to naught.
The only criminal involved
As soon as President Joe Biden entered the White House, Texas Attorney General Ken Paxton launched an unprecedented campaign of obstruction to block his agenda in the courts. Paxton took advantage of a quirk—really, a loophole—in the federal judiciary: A state can pick the specific judge who will oversee its case by filing in a small division where only one judge sits. Using this strategy, Paxton has positioned his cases before a rotating cast of the same conservative judges, most of them nominated by Donald Trump. They have dutifully played their role in this pantomime of litigation, issuing an unending series of sweeping injunctions that block Biden administration policies nationwide for months or years.
On Thursday, the administration finally said: enough. In response to yet another Texas lawsuit exploiting this loophole, Biden’s Justice Department called out Paxton—and, implicitly, the judges playing along with his scheme. The DOJ highlighted Texas’ “blatant” and shameless “judge-shopping,” urging a transfer to another court “in the interests of justice.” Naturally, Trump-nominated Judge Drew Tipton is unlikely to oblige; that is, after all, why Paxton hand-picked him for this lawsuit. But the DOJ’s filing marks a new phase of battle against Republicans’ judicial gamesmanship: The Justice Department is playing hardball in the lower courts, forcing compromised judges to address their own complicity in a cynical partisan chicanery.
As soon as President Joe Biden entered the White House, Texas Attorney General Ken Paxton launched an unprecedented campaign of obstruction to block his agenda in the courts. Paxton took advantage of a quirk—really, a loophole—in the federal judiciary: A state can pick the specific judge who will oversee its case by filing in a small division where only one judge sits. Using this strategy, Paxton has positioned his cases before a rotating cast of the same conservative judges, most of them nominated by Donald Trump. They have dutifully played their role in this pantomime of litigation, issuing an unending series of sweeping injunctions that block Biden administration policies nationwide for months or years.
On Thursday, the administration finally said: enough. In response to yet another Texas lawsuit exploiting this loophole, Biden’s Justice Department called out Paxton—and, implicitly, the judges playing along with his scheme. The DOJ highlighted Texas’ “blatant” and shameless “judge-shopping,” urging a transfer to another court “in the interests of justice.” Naturally, Trump-nominated Judge Drew Tipton is unlikely to oblige; that is, after all, why Paxton hand-picked him for this lawsuit. But the DOJ’s filing marks a new phase of battle against Republicans’ judicial gamesmanship: The Justice Department is playing hardball in the lower courts, forcing compromised judges to address their own complicity in a cynical partisan chicanery.
The underlying lawsuit in Texas v. Department of Homeland Security is another frivolous effort to shift control over border policy from the executive branch to a single federal judge. Paxton has pulled this off before: In August 2021, he persuaded another Trump-nominated judge, Matthew J. Kacsmaryk, to block Biden’s repeal of a Trump policy that forced U.S.-bound migrants to remain in Mexico. Kacsmaryk even forced U.S. diplomats to negotiate with Mexican officials under threat of sanctions. Texas’ new suit, filed on Tuesday, seeks to do something similar. The state is infuriated by a new agreement between the Biden administration and Mexico regarding migrants from Cuba, Nicaragua, Haiti, and Venezuela. (The U.S. cannot send these migrants back to their home countries.) The agreement compels most of these migrants to stay on the Mexican side of the border. But it allows a small number of them to enter the U.S. legally—and remain here for a limited period—if they are vetted and have financial supporters in the country already.
This policy, first implemented in December, has already contributed to a dramatic reduction in unlawful entry among migrants from the four relevant nations. But Texas is furious that the new rules will allow some migrants to enter the U.S. lawfully. So its lawsuit asks the judiciary to strike down the entire policy, blowing up negotiations between the Mexican and American governments.
Paxton strategically filed the suit in the Victoria Division of the Southern District of Texas, where exactly one judge sits: Tipton, not just a Trump nominee but also a longtime Federalist Society member. This is the seventh case that Paxton has positioned before Tipton. The first, filed two days after Biden’s inauguration, sought to block the new president’s 100-day halt on deportations. Tipton swiftly granted a nationwide injunction against the pause.
Paxton’s suit is also the 25th time he has exploited the single-judge loophole to get a case before an ideological ally in Texas, according to statistics meticulously compiled by law professor (and Slate contributor) Steve Vladeck. (That count shoots up when you factor in suits filed in other red states with single-judge divisions, like Louisiana.) This plot goes way beyond any Democratic forum-shopping under Trump. Democrats filed in favorable district courts and hoped they drew a left-leaning judge. Paxton, by contrast, zeroes in on a handful of divisions within districts where he is guaranteed to draw a hard-right judge.
The Justice Department is asking for the case to be moved to either Austin or Washington, DC, on the theory that as the plaintiff is the state of Texas and the defendant is the USA, the case should be heard where one of them “resides”, which is to say one of their capitals. Alternately, the Justice Department asks for the suit to be moved to another division within the Southern District of Texas, one that has multiple judges in it, so the case can be randomly assigned as per the norm, instead of going to one of Paxton’s pet judges by default. I have no idea what the likelihood of that is – clearly, Slate author Mark Joseph Stern isn’t optimistic – but it can’t hurt to ask, if only to see what kind of weak justification is given for denying the request. I don’t know if this is appealable, but if it is I’d expect the Justice Department to go for it, since why not. It’s worth the effort and if nothing else it may at least put a little sand in Paxton’s gears. Anything is better than what we have been doing.