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.
For nearly two years, the Justice Department largely held its tongue about this abuse of the system. Over the past few months, however, its tone shifted. Solicitor General Elizabeth Prelogar’s invective against nationwide injunctions at the Supreme Court in December was inflected with a criticism of states shopping cases to “one single district judge in a forum of their choosing.” And in October, the DOJ fought back when Oklahoma filed a complaint in Texas about a prisoner in Louisiana—even though the case had literally no connection to Texas. There, the DOJ filed a motion to transfer for the obvious reason that no party had any business litigating in the state. (The judge ultimately skirted the issue by denying jurisdiction.)
Thursday’s motion to transfer goes much further. The Justice Department, at last, is tackling Texas’ “blatant forum shopping” head-on. Allowing a state to select its preferred judge constitutes cynical “gamesmanship,” DOJ lawyers explained. This practice “undermines public confidence in the administration of justice” and the “impartiality of the judicial system.” It creates the “perception that different forms of justice would be available to litigants, depending upon the division in which a suit was filed.”
From the typically staid and restrained Department of Justice, these are fighting words.
The DOJ provided three reasons why Tipton should transfer the case. First, it argued that under state and federal law, Texas “resides” in Austin, the state capital, while the U.S. government “resides” in the District of Columbia. So Tipton should transfer the case to a federal court in either Austin or D.C., where the plaintiff and defendant are located. Second, the DOJ argued that Tipton should transfer the case to Austin or D.C. under a federal law that permits a change in venue “for the convenience of parties and witnesses, in the interest of justice.” These cities are where “the relevant documents and any potential witnesses likely reside,” and where the relevant state and federal agencies are located. No aspect of the recent migrant-policy case, by contrast, has any connection with Victoria, Texas. So convenience and logic, plus “systemic integrity and fairness,” require transfer.
Finally, the Justice Department presented a last-ditch offer: If you won’t transfer the case to Austin or D.C., it wrote, at least send it to another division within the Southern District of Texas where multiple judges sit. That way, it’ll be randomly assigned to one of several judges, foiling Paxton’s efforts to pick the jurist who’ll oversee his case.
This filing is Tipton’s moment of truth. In the previous six cases, he could pretend that there was some good reason for Texas to come to his court; after all, the United States did not argue otherwise. Now the government has laid out the scheme in which Tipton is a willing participant, forcing him to confront his complicity—really, his collusion—with Republican corruption of the courts. His total lack of integrity thus far certainly does not bode well in this case. But it’s a positive sign that Biden’s Justice Department is ready to bring this fight to the worst offenders, putting judges like Tipton on notice that it will no longer play along.
