"Uterus Inquisition Squad"

Access to medicine shouldn’t be controversial, and it wouldn’t be but for the Christian fundamentalist forces who’ve been emboldened by the right-wing takeover of the Judicial Branch and the Supreme Court’s revocation of reproductive rights. Now, at the very moment mifepristone has become one of the few means of securing widespread abortion access, these people have targeted it for destruction. Back in November, the inaccurately named Alliance Defending Freedom (ADF) brought a lawsuit against the FDA challenging its initial approval of mifepristone. The ADF claims that the FDA did not follow its own procedures when it approved the drug.

The lawsuit is so ridiculous that it hardly warrants discussion on the merits. First of all, the statute of limitations allows challenges to FDA procedures for only six years and mifepristone has been approved for over 20. Moreover, Congress passed an amendment to the Food and Drug Act in 2007 that revised the FDA’s procedures and deemed any drug previously approved by the agency to be in compliance with the new rules. There are also jurisdictional problems with the lawsuit. But even if you overlook all these technical legal hurdles, the ADF’s core argument—that the FDA failed to consider the dangers of mifepristone—is wrong. Mifepristone is safe, and no amount of Gregorian chanting from the self-appointed Uterus Inquisition Squad can prove it otherwise.

Unfortunately, we have to treat this incoherent nonsense masquerading as a lawsuit as a serious threat to abortion drugs because of the judge who recently got hold of the case: Matthew Kacsmaryk. Kacsmaryk is a Trump-appointed district court judge in Texas.

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He was an anti-gay crusader for a Christian right law firm before Trump raised him up to be a judge. He claims that homosexuality is a “disorder.” He’s attacked the right to contraception and denounced the “sexual revolution” of the 1960s and ’70s.

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[This case has] not ended up in front of Kacsmaryk by accident or bad luck. Right-wingers have actively sought out Kacsmaryk for their most dubious legal claims by means of the 21st-century version of “forum shopping.”

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In the past, one of the more popular forms of forum-shopping saw lawyers trying to game out whether a state court or federal one would lead to a better outcome. They could do this because many state and federal laws overlap, and many corporations (and the federal government) can be sued in any state they do business in.

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The Supreme Court tried to put a stop to this kind of forum shopping in 1938, in a case called Erie Railroad v. Tompkins. The so-called Erie Doctrine required that in cases where there is a question of whether to apply federal or state law, a federal judge must apply the law as it would be understood in the states where the judge resides.

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You’ll never see a challenge to federal gun regulations filed in California, or a lawsuit against the fossil-fuel industry filed in Texas. Lawyers will always seek to take advantage of the laws most favorable to their clients or positions, wherever those laws happen to exist.

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[L]awyers Steven Vladek and Max Wolson point out that Texas regularly removes cases to federal court to get specific judges, and it works.

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But that’s not what right-wingers are doing now. Instead, they are “judge shopping”—trying to take advantage of the fact that the judges themselves apply the laws differently based on which party appointed them and whether they have even a basic grasp of logic or fairness.

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In the North District of Texas, judges are assigned based on their “divisions,” which break the region down to places like Dallas, Lubbock, and Amarillo. Kacsmaryk is the district judge for Amarillo and, by rule, is assigned every single federal case filed there. If you bring a federal case in Amarillo, you are guaranteed to get Judge Kacsmaryk. As Ian Milihiser put it on Vox, this rule makes Judge Kacsmaryk “one of the most consequential public officials in modern-day America.”

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Meanwhile, Texas Attorney General Ken Paxton regularly files suit in the Southern District of Texas, Victoria Division, where the case is guaranteed to end up in front of Judge Drew Tipton, another Trump appointee who is a virulent anti-immigration crusader. Paxton did it again this week to challenge another Biden immigration policy.

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There are no laws, rules, or doctrines to stop this kind of behavior. Arguably, both conservative and liberal lawyers can (and do) engage in judge shopping at some level. What’s supposed to make the process fruitless are the circuit courts of appeal and, ultimately, the Supreme Court.

  The Nation

So much for any liberal lawyer's hopes of judge or forum shopping advantage.

[C]ertain courts of appeal, like that of the Fifth Circuit that presides over Texas, have been captured by right-wing extremists just like the rest of the Republican Party. More problematically, we’ve seen the Supreme Court act quickly to overrule liberal district court judges on emergency appeal but leave in place rulings from conservatives for at least as long as it takes for their cases to make it all the way up to the highest court through normal order. That’s a process that can take years, and sometimes span presidential administrations.

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When you file a lawsuit, the judge should be picked from a pool of all federal judges in a state, and if we’re talking about a federal law, any judge in the country should be in the hopper.

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The circuits exist so that travel wouldn’t be too taxing for the judges, who lived in some central region of the district. But judges no longer need to take two horses and a palanquin hoisted by slaves to get from New Orleans to Amarillo. A Delta flight and an Uber can get anybody anywhere in this country in under 12 hours.

...but hey, do what you want...you will anyway.

UPDATE 04/13/2023:  The Texas judge ruled as expected.  Scrambling ensued.

Still ridiculous.

Can district judges vacate executive agency orders?

That depends, doesn't it?  On who is in power.

The issue of whether judges should have this power came up during a heated oral argument at the Supreme Court this week. The case, United States v. Texas, involves an appeal of US District Judge Drew Tipton’s decision to “vacate” a rule issued by Department of Homeland Security Secretary Alejandro Mayorkas. Mayorkas ordered Immigration and Customs Enforcement (ICE) to prioritize detaining undocumented immigrants who “pose a threat to national security, public safety, and border security.” Tipton is a Trump appointee for the Southern District of Texas who is basically Stephen Miller with better hair. He vacated Mayorkas’s order, saying that the federal government cannot pick and choose which immigrants to detain but must detain all immigrants who are out of status.

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Courts have long held that the Executive Branch (of which the DHS is a part) retains a level of discretion on whom to prosecute and how. Prosecutors, for instance, can decide to focus on white-collar criminals instead of turnstile jumpers (or do the exact opposite when they’re cowards). Moreover, even if the DHS wanted to detain every single undocumented immigrant in this country, it couldn’t. The DHS and ICE have neither the labor force nor the detention space (nor the toothbrushes, apparently) to round up and process every undocumented immigrant, no matter how dearly white nationalists wish they could.

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Far more interesting, though, is another argument the DOJ made—an argument to curb the power of Tipton, and the legion of Trump judges just like him, to muck up the normal procession of laws in the future.

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It argues that judges can discard agency actions that they think are unlawful, but they can’t enjoin those agency rules from applying to the rest of the country.

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[T]he justices most hostile to the DOJ’s position were an unlikely trio that included Chief Justice John Roberts, [...] Brett Kavanaugh, and Ketanji Brown Jackson.

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It’s a radical argument that would severely limit the power of judges to stop the Executive Branch. It’s also a problematic argument. While limiting the power of judges like Tipton is a great idea, allowing executive agencies to make rules and take actions without robust judicial checks is pretty scary. The group of people running the DHS and ICE before the Biden administration should be enough of a reminder that things can always get worse.

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While federal agency actions are traditionally reviewed by the D.C. Circuit, the power to vacate agency rules is technically held by any judge, anywhere. In this case, Judge Tipton is essentially a roadside judge in Texas who tells defendants what he does or doesn’t take kindly to.

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“I want judges to enjoin federal agencies, if the judges are good” is not an intellectually defensible position, particularly once you accept the fact that Trump judges exist and will continue to wield power for some time. “I don’t want judges to be able to stop federal agencies from making rules” also seems woefully naive, given not just what Republicans do when they control the executive but also the fact that every president will try to push the limits of their power.

All I can say confidently and stridently is: A judiciary is only as good as the people running it, and right now we have some terrible people in charge.

  The Nation

A fine mess. And no apparent way to fix it.