Last week, the Department of Justice quietly filed a change of venue motion in Utah v. Walsh, a challenge a bunch of GOP states and a few energy companies brought to challenge rules governing investment managers and their duties to the pension funds they oversee. At issue is a new rule from the Department of Labor that “that allows plan fiduciaries to consider climate change and other environmental, social and governance factors when they select retirement investments.”
Republican states hate that, as does big oil, as does the architect of the Trump takeover of the courts, long-time vice president of the Federalist Society Leonard Leo. They teamed up and went out judge shopping. Actually, they didn’t have to shop. They knew exactly were they were going—to Amarillo, Texas, and Trump judge Matthew Kacsmaryk.
That’s what the Justice Department is trying to stop—filing to have the case moved—because here’s what’s happening in Texas, explained by Vox’s Ian Millhiser: “[T]he case assignments process in Texas is not functioning properly. Texas federal courts assign 100 percent of all cases filed in Amarillo to Kacsmaryk. They assign virtually all cases filed in Victoria to [Drew] Tipton. That means that right-wing litigants can guarantee their lawsuit will be heard by an allied judge simply by filing their suit in one of these two cities.” Tipton is also a Trump judge.
If the name Kacsmaryk rings a bell, that’s because he’s the one deciding the immediate future of access to medication abortion for the whole nation.
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He’s also, as Milhiser sums up, this guy:
Matthew Kacsmaryk’s record reads like he’s the villain in a parable about a puritanical witch-hunter. A former lawyer at a Christian right law firm, Kacsmaryk has claimed that being transgender is a “mental disorder,” and that all gay people are “disordered.” He’s railed against a “Sexual Revolution” that began in the 1960s and 1970s, which supposedly claims “that marriage, sexuality, gender identity, and even the unborn child must yield to the erotic desires of liberated adults.”
It’s not just the icky sex stuff he’s got a problem with, of course. It’s anything the 20th century advanced politically and culturally. He’s racked up quite the track record in a few years on the bench, blocking Biden administration policies on immigrant, reproductive, and LGBTQ rights. “I’m hard-pressed to think of a federal judge who has had a greater impact in less time,” Stephen Vladeck, a University of Texas at Austin School of Law professor told Bloomberg Law.
There are four judicial districts in Texas, Northern, Eastern, Westerns and Southern. Kascmayrk is on the Northern. The way cases are assigned in the district has ensured that any case filed in Amarillo goes to Kacsmaryk. So all those right-wing groups who want to challenge the Biden administration or the rights of everyone who isn’t a wealthy white, white, straight male knows where to go.
The Justice Department is trying to stop that, arguing that federal allows that “an entity with the capacity to sue and be sued . . . shall be deemed to reside . . . only in the judicial district in which it maintains its principal place of business,” and that the state of Texas—a plaintiff—officially is in Austin as its place of business, putting it in the Western District. The DOJ argues that “‘the interest[s] of justice’ alone favor transfer” because “the public’s interest in the fair administration of justice would be harmed if a filing with strong indicia of judge shopping were left unchecked.”
That gets at something much larger in the federal judiciary—the legitimacy of the courts. Assuming this challenge for a change of venue goes to the Supreme Court, what will be at issue out in front o the public is the manipulation of the courts by extreme political actors for the decisions they want handed down, like the end of abortion rights across the nation. That’s not something that the Supreme Court likely wants to see debated in the public sphere right now, when its legitimacy is already suspect.
It’s frankly a relief to see that the tactic of judge shopping has risen to the level that DOJ is calling it out and fighting it, potentially all the way to the Supreme Court. Keep going!
President Biden's State of the Union was a masterclass in politics. The Republican Party, like a headless hydra, is unable to find a meaningful policy to get behind. Markos and Kerry talk about the highlights of last week and the enjoyment of watching Senate and House conservatives snipe at one another.
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