NY Times Suddenly Discovers 'Problem' of GOP Judge Shopping, 'Weaponized' Courts

December 25th, 2018 2:16 PM

There is a pernicious media trend to treat ordinary partisan things as out of the ordinary and a danger when conservatives do them. One offender is New York Times Supreme Court reporter Adam Liptak. Recently he worried about the Supreme Court’s legitimacy, now that it was finally leaning somewhat rightward.

On Tuesday he exhibited a sudden concern about the ordinary partisan phenomenon of “judge shopping,” which liberal lawyers have been doing for years (as Liptak himself admits). But now it’s a “problem” in “How Judge Shopping in Texas Led to Ruling Against Health Law.” (A ruling against the Affordable Care Act the Times clearly can’t abide).

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.

So is that line above (bold added) a cue designed to raise ones’ eyebrows in suspicion about the conservative-friendly judicial decisions that follow?

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.


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.”

Liptak gives bias away here with the word “problem.” Is it only a “problem” when conservatives go judge shopping?

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.


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.”

In mid-December, right after O’Connor’s ruling on Obama-care, reporter Manny Fernandez discovered judge shopping under the slanted online headline “In Weaponized Courts, Judge Who Halted Affordable Care Act Is a Conservative Favorite.”

In the 11 years Judge Reed O’Connor has been on the federal bench, he has become a favorite of Republican leaders in Texas, reliably tossing out Democratic policies they have challenged....No one questions his expertise on the law. But his rulings illustrate the ways in which the federal district courts have become politically weaponized, as Republicans and Democrats alike try to handpick judges they see as ideologically friendly to their cases.

The Times wasn’t nearly as worried about the notoriously “liberal” Ninth Circuit Court of Appeals. The paper refuses to take the idea of a liberal court seriously, putting the word in quotes in the headline: “‘Liberal’ Reputation Precedes Ninth Circuit Court.