Editor’s note: This is the first of several pieces I’ll be posting drawing a link between the GOP Senate’s obstruction of President Obama’s judicial nominees and how that is empowering conservative judges in lower courts to block Obama’s policies nationwide. If ever there were a time to examine this link, it’s now, less than two weeks before voters have a chance to determine who controls the U.S. Senate.
An unsettling pattern has emerged in Texas of federal district judges issuing nationwide injunctions on policies put forward by the Obama administration. In other words, judges from the most conservative circuit in the nation are overriding the federal government and dictating policy nationwide from their benches in Texas.
That is precisely what happened in three separate rulings since early 2015 concerning an immigration case filed in the Southern District of Texas, an LGBTQ case filed in the Northern District of Texas, and a case concerning contracting rules filed in the Eastern District of Texas. In every instance, a federal district judge barred policies of the Obama administration from going into effect by issuing a nationwide injunction. Two of those cases even bear the twin names, Texas v. U.S. The third and most recent nationwide injunction came this week in a case called Associated Builders and Contractors of Southeast Texas v. Rung.
"Texas is the obvious choice," says David Leopold, an immigration attorney who has followed every twist of the case that has blocked federal guidance granting deportation relief for up to five million undocumented immigrants. "If you pick the right court and land the right judge, then you're insulated because you're in the most conservative circuit in the country."
Court shopping or forum shopping is not a particularly new concept, Leopold says, as long as it's done within the bounds of procedural rules. But these cases represent what Leopold calls a "troubling pattern" of Republican-elected officials shopping for a venue in which to block a policy they don't like and then filing for injunctions.
In fact, the GOP-led immigration case was filed on behalf of 26 states and yet somehow it landed in Texas with a federal judge who had a history rife with anti-immigrant rulings. Similarly, the case blocking an Obama administration rule allowing transgender students to use bathrooms consistent with their gender was filed in concert with about a dozen Republican governors and attorneys general, and yet it wound up with a federal judge in Texas who had previously targeted same-sex partners for unfair treatment.
In that case, indicted Texas Attorney General Ken Paxton appears to have not only court shopped, but actually judge shopped, wrote Ian Millhiser at the time.
Attorney General Paxton’s office is located in Austin, the state’s capitol. Yet Paxton’s legal team filed this lawsuit over 300 miles away in the Wichita Falls Division of the Northern District of Texas. There is exactly one judge in the Wichita Falls Division of the Northern District of Texas: Judge Reed O’Connor.
Following Judge O’Connor’s nationwide injunction in late August of the Obama administration’s new bathroom rule, Justice Department lawyers asked the judge to restrict his injunction to the 13 states that had joined the lawsuit. Judge O'Connor refused to do that earlier this month, justifying his nationwide blockade of the policy as apparently routine now.
"It is clear from Supreme Court and Fifth Circuit precedent that this Court has the power to issue a nationwide injunction where appropriate," he wrote.
O'Connor cited as precedent the Supreme Court's 4-4 split over the immigration case of the same name—Texas v. U.S.—in which Judge Andrew Hanen issued a nationwide injunction on Obama’s executive actions known as the Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA).
In other words, O'Connor was using as justification the fact that the Supreme Court didn't have a ninth justice to actually break the tie in the immigration case, resulting in the court’s inability to either uphold or overturn the president's policy and, by extension, the nationwide injunction. O’Connor took that non-conclusive result as license to issue another nationwide block on administration policy in a completely unrelated case.
"It underscores the absolute travesty of the Senate failing to confirm the president's pick of Judge Garland and fill the vacancy at the Supreme Court," Leopold says, adding that a nationwide injunction from a federal district judge is rather "extraordinary."
Perhaps not so coincidentally, Senate Republicans filed an amicus brief in the immigration case arguing that President Obama's executive actions were unconstitutional.
So let’s connect the dots here: What you have is Sen. Mitch McConnell refusing to even vote on President Obama's Supreme Court nominee and then weighing in on a policy that was argued before that very court, which he purposely under-resourced. The 4-4 split was a function of McConnell failing to do his job. Then Judge O'Connor effectively used that split to help establish a precedent in support of the power of one federal judge to block the policies of the federal government nationwide. (Judge Marcia Crone also cited both the immigration and bathroom cases as precedents for issuing her nationwide injunction this week on the Department of Labor’s new federal contractor rule.) And it just so happens that at least two of those three cases were filed in districts with judges who had a history of ruling against progressive policies in their courts.
I will have more on this in the days and weeks to come. A big part of the problem, as mentioned above, is the failure of the GOP-led Senate to confirm a ninth justice to the Supreme Court. But I also suspect, based on Ian Millhiser's point above, that the Senate's failure to approve lower court judges has enabled Republicans with a political bone to pick to do more than just "court shop," instead allowing them to actually judge shop.
Sure, it’s Texas. But three nationwide injunctions on federal policy from one state over the course of two years is, as Leopold said, extraordinary, and perhaps unprecedented. Something ain’t right.