Texas’ One-Stop Shopping for Judge in Health Care Case
WASHINGTON — When lawyers for Texas and 19 other states were deciding where to file a lawsuit seeking to wipe out President Barack Obama’s health care law, they had many choices. But they settled on a federal courthouse in Fort Worth, Tex.
Forum shopping in litigation is common, and liberal lawyers challenging Trump administration initiatives like to file their cases in places like San Francisco or Brooklyn. But the lawyers in the health care case did more than choose a venue where the mix of judges was likely to include ones apt to favor their arguments. They effectively chose their own judge.
That is because there is only one active judge in the Fort Worth Division of the Federal District Court for the Northern District of Texas. He is Judge Reed O’Connor, and he has quite a track record.
He ruled for Texas in 2015 when it challenged an Obama administration measure extending family leave benefits to married same-sex couples. That decision came two years after the Supreme Court extended federal benefits to such couples and just months before the court established a constitutional right to same-sex marriage nationwide.
He also ruled for Texas in 2016, blocking the Obama administration from enforcing guidelines expanding restroom access for transgender students.
And this month he accepted Texas’s arguments that the entire 2010 health care law was rendered unlawful by a 2017 congressional action adjusting one of its provisions.
Since 2015, The Texas Tribune found, Judge O’Connor has heard almost half of the state’s suits against the federal government filed in federal court in Texas.
A new article in The Columbia Human Rights Law Review by Alex Botoman called for an end to such judge shopping.
“As long as court procedures allow politically motivated litigants to pick their judges, the judiciary risks enabling, rather than combating, the growing view that judges are mere political actors,” he wrote. “That is a risk that a country committed to an independent judiciary can ill afford to take.”
Mr. Botoman, a recent graduate of Columbia Law School who is now serving as a law clerk to a federal judge, drew a distinction between forum shopping and judge shopping. Congress created 94 federal judicial districts. Were cases filed in those districts randomly assigned, litigants would have no assurance of being heard by a particular judge.
There are, for instance, 12 authorized judgeships in Judge O’Connor’s district, the Northern District of Texas.
The problem arises because districts are typically subdivided into geographical divisions. By itself, that is a harmless convenience, allowing litigants to avoid traveling hundreds of miles to courthouses in remote parts of sprawling districts.
But some courts also assign particular judges to particular divisions. Some also let litigants file their cases in any division of the district. That combination allows plaintiffs to choose their own judges.
The problem is common, Mr. Botoman found. In at least 81 divisions in 30 district courts, he wrote, one or two judges hear all of the division’s cases. In districts that let plaintiffs sue wherever they like, he wrote, “having divisions with only a few assigned judges makes it easy for plaintiffs to judge shop.”
A few courts make exceptions in politically charged cases, requiring them to be assigned at random across all of the district’s judges. That approach could serve as a model, Mr. Botoman wrote.
“While judge shopping is always concerning, in cases between two private parties, any hardships that can be attributed to a judge-shopped outcome are typically borne only by the parties to the case,” Mr. Botoman wrote. “But challenges to laws and regulations are different.”
“Because the effects of these cases are felt well beyond the original parties,” he wrote, “it is especially important to ensure that judge assignments are made with the highest degree of impartiality.”
Such a change would not be hard to achieve, Jonas Anderson, a law professor at American University, wrote in a 2016 article urging action to prevent judge shopping in patent cases in the Eastern District of Texas. No congressional action was needed, he wrote, as courts have great discretion in deciding how to allocate cases within their districts.
“The court itself can make this assignment procedure change with a simple memo from the chief judge,” Professor Anderson wrote.
There was a small sign of change along those lines in Judge O’Connor’s district not long ago.
Texas filed the family leave and transgender cases, along with several other challenges to federal programs, in the Northern District’s Wichita Falls Division. At the time, Judge O’Connor was the only judge in the division.
In 2016, Chief Judge Barbara M. G. Lynn, an appointee of President Bill Clinton, took a modest step to constrain Judge O’Connor’s power, announcing that she would handle 15 percent of the civil cases filed in the Wichita Falls Division, to be assigned randomly.
After that, Texas filed two cases against the federal government, including the one challenging the health care law, in the Fort Worth Division, where Judge O’Connor is the only active judge, along with two semiretired ones. He heard both cases.
Follow Adam Liptak on Twitter: @adamliptak.
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