Two decades ago, writing about Bush v. Gore, my friend and former dean Ward Farnsworth suggested that “those who accuse the majority of having partisan motives underestimate the good faith of the justices; but those who acquit the Court of partisan behavior may overestimate the utility of good faith as a constraint on wishful thinking.” I’ve come back to this passage a lot in the last few years, but never more than Tuesday night, when reading a new ruling by Judge Matthew Kacsmaryk, the district judge who hears every civil case filed in the Amarillo division of the U.S. District Court for the Northern District of Texas.
The ruling came on a motion from the federal government to transfer a case away from Judge Kacsmaryk—one of the dozens of lawsuits that Texas and other red states have steered to Amarillo and other “single-judge divisions” in federal district courts in Texas. This particular suit—a challenge to new environmental, social, and governance guidance from the Department of Labor—has no logical connection to Amarillo; none of the plaintiffs live there, the Department of Labor has no meaningful presence there, and so on. Instead, it’s part of a broader pattern of judge-shopping—where plaintiffs steer cases to the same isolated geographical venues and then publicly admit that the reason they’re doing it is because by filing in those jurisdictions, they know which judge they’ll draw. (This case is the seventh that Texas has filed in Amarillo alone since President Biden came into office.)
I’ve spent a fair amount of time over the past 18 months cataloguing Texas’ judge-shopping behavior, much of the research for which I’ve posted to Twitter. And I’ve argued, in various media, that judge-shopping is a serious problem for public perception of the fairness of the judiciary—even more so than the ordinary “forum shopping” that is more pervasive in our system, where litigants file in particular locations because the overall bench, or jury pool, or procedural or substantive law, is more favorable. It’s one thing to file in a forum where the odds of drawing a particular judge, or a judge appointed by a president of a particular party, are relatively higher. But I’ve laid out in a fair amount of detail why manipulating the rules so you can literally choose the specific federal judge who hears your case is far more onerous than forum-shopping in both kind and degree; readers can decide for themselves whether or not they’re persuaded.
Critically, though, I have avoided—rather assiduously—attacking the judges to whom these cases are being shopped. That’s because judge-shopping is a problem even if the judges are behaving in a manner consistent with the standards of the profession—because of the appearance that it creates. The issue isn’t whether the judges are in fact predisposed toward the plaintiffs who have carefully selected them; it’s the fact that the plaintiffs are carefully selecting them. Back to Farnsworth, the argument is not that these judges are acting in bad faith; it’s that the plaintiffs’ behavior creates the perception that these are not neutral arbiters—a perception the judiciary can ill afford to endorse.
In their motion to transfer this case (and two others), the Justice Department has relied, at least in part, on some of that research. Citing some of my tweets and an amicus brief that I filed (along with my friends Lindsay Harrison at Jenner & Block and Max Wolson at the National Immigration Law Center) in the Supreme Court in a different Texas challenge to a Biden policy, the DOJ’s position is that, even if Amarillo might otherwise be an appropriate place for the lawsuit to be heard, Texas’ litigation behavior ought not to be rewarded—and so the case should be transferred to a different (appropriate) forum in which the judge to hear it would be randomly assigned.
Enter Judge Kacsmaryk, who has come to national attention in recent weeks as he considers in a separate case whether to issue a nationwide injunction banning the most common form of medication abortion in a lawsuit that could’ve been brought anywhere in the country, but was brought in Amarillo—entirely so that it would be heard by Kacsmaryk (whose anti-abortion views are well known). If all Judge Kacsmaryk did in his Tuesday ruling was deny the DOJ’s motion to change venue in the ESG case, it wouldn’t be much of a story. But in the course of rejecting the DOJ’s arguments, Kacsmaryk decided to come after me—even though I’m not involved in that case in any way.
First, he dismissed the (incontrovertible) evidence of Texas’ behavior as “an amicus brief filed by a professor with a Twitter account.” Leaving aside that the amicus brief to which he’s referring, once again, was filed in a different court in a different case, this clumsy attempt at a burn (lots of professors—and lawyers—have Twitter accounts) never comes close to addressing the substance of my trifling little tweets. If I had posted my data to a more academic site, would it somehow be more compelling?
But in a footnote, he took an even subtler and more personal shot, suggesting that “mercifully,” the late Texas Law Professor Charles Alan Wright “did not live long enough to endure the ‘tweet and repeat’ indignity of the Twittersphere.” Just to make the dig clear, I currently hold the Charles Alan Wright Chair in Federal Courts at the University of Texas School of Law. It’s hard to say what exactly Kacsmaryk intended to convey by name-checking the man whose chair I have the honor of holding; no doubt it was meant as another fire-emoji-level burn of me personally. But it’s a remarkably childish and churlish shot for a sitting federal judge to take at a non-party for the sin of amassing accurate data in support of a position he doesn’t like.
Indeed, there’s a lot to say about this passage. Were Professor Wright here, he might note how much of a stickler he was for both judicial decorum and for the importance of preserving the courts’ institutional reputation (he was also an early adopter of new technology; his Twitter account would’ve been lit). Since he’s not, I’ll note what it says about a judge that he’d go out of his way to try to denigrate someone with no direct involvement in a case before him for no other reason than scoring points (on Twitter, one presumes) and auditioning for a promotion in the next Republican administration. You wouldn’t think “I’m owning libs, so I’d make a great appellate judge” would be a persuasive argument, but here we are.
Then there’s the extent to which, again, it’s not actually responsive to any of the data I’ve gathered or the arguments I’ve made against the practice Kacsmaryk is endorsing. There’s the pettiness (to say nothing of the inaccuracy) of the “your chair’s namesake would disapprove” nonsense. But most of all, there’s the sense that this kind of behavior is beneath the dignity of a life-tenured federal judge with the power (at least for the moment) to issue rulings with nationwide implications.
Like judge-shopping itself, all this intemperance does is reinforce the perception, whether accurate or not, that the judge is not a neutral arbiter of at least some of the cases that come before him—ironically underscoring the entire argument for transferring this case away from him. And beyond the DOJ’s specific arguments in this specific case, it seems that the federal judiciary as a whole ought to be invested in dispelling the perception that it is comprised of partisans in robes—not reinforcing it.
Not so long ago, a currently sitting circuit judge asked that I “not cast aspersions on [their] judicial colleagues.” As I replied to that judge, my default is to avoid doing so whenever and wherever possible, both because I think it’s unwise to assume bad faith and because there’s an important line between criticizing a judge’s rulings and attacking the judge personally. Back to Farnsworth, too many of us “underestimate the good faith of” judges with whom we disagree. But Kacsmaryk’s behavior reinforces just as powerfully the other part of Farnsworth’s warning—that those who acquit judges “of partisan behavior may overestimate the utility of good faith as a constraint on wishful thinking.” Judges ought to be above this; that they keep showing us the many ways in which they’re not is a big part of why public faith in the judiciary has been eroding so significantly in recent years—far bigger than the efforts of “a professor with a Twitter account.”
