Seth Wenig/AP Photo
Through judicial confirmations, Republican senators can essentially block any judge they don’t like, turning large swaths of the country into conservative judicial factories.
A couple weeks back, the Prospect reported on a novel decision by the Judicial Conference of the United States, an internal policymaking apparatus for the judiciary branch. The Conference recommended that plaintiffs seeking a nationwide injunction of a legislative or regulatory policy should not be able to go “judge shopping,” by filing in parts of the country (like Amarillo, Texas) where they would almost certainly get their anti-government judge of choice. Instead, if a case were filed in a federal court district, it should be randomly assigned to a judge within that entire district, rather than in the particular division where it was filed.
This was a smart reform, but unfortunately it’s nothing more than nonbinding guidance. Conservatives who believe the judiciary is theirs to control by divine right immediately blasted the concept. Senate Majority Leader Chuck Schumer (D-NY), by contrast, appealed directly to the chief judge in the notorious Northern District of Texas, home of some of the most egregious examples of judge shopping, asking him to adopt the reform.
Chief Judge David Godbey has yet to publicly respond, though in the past he has been dismissive of Schumer’s pleadings to put an end to judge shopping. (UPDATE: Godbey released a letter after press time on Friday saying he would not change case assignment policies in the Northern District.) But one judge in the Northern District of Texas, a Trump appointee no less, showed by his actions a willingness for an even broader reform: sending cases that involve Washington policymaking back to Washington where they belong.
The case in question was crudely slapped together by the Washington-based U.S. Chamber of Commerce, in reaction to the Consumer Financial Protection Bureau’s (CFPB) cap on late fees for large credit card issuers at around $8. In order to get it before a friendly judge, the Chamber and its Washington lobby group co-plaintiffs (the American Bankers Association and the Consumer Bankers Association) sought help from affiliates and pro-business groups in Texas. That way, they could plunk the case in the aforementioned Northern District.
The Chamber filed in Fort Worth, claiming that it had standing to sue there because of co-plaintiffs from the Fort Worth Chamber of Commerce, the Longview, Texas, Chamber of Commerce, and the Texas Association of Business. The latter two do not reside in the Northern District of Texas, nor did they identify any credit card companies within their membership. The former, the Fort Worth Chamber of Commerce, named exactly one credit card company as a member: Synchrony Bank. But Synchrony Bank is an online bank with only one branch in America, and it’s about 1,200 miles away in Draper, Utah. (This in itself is a different kind of shopping, where banks seek out favorable regulatory terrain.) Synchrony Bank also appears to not be a member of the Fort Worth Chamber of Commerce: The member listed in the organization’s directory is Synchrony Financial, which is the parent company, based in Stamford, Connecticut.
The Chamber’s presumed goal was to get the case before Reed O’Connor, a right-wing George W. Bush appointee.
In fact, there is no credit card issuer physically based in Fort Worth, Texas, that would be subject to the CFPB rule.
“Put simply, this case—about a consumer protection rule issued in Washington and applicable to a small number of large card issuers, not one of which appears to be based in this District—does not have an adequate connection to this District for venue to be proper,” the CFPB wrote in its reply brief.
The Chamber’s presumed goal was to get the case before Reed O’Connor, a right-wing George W. Bush appointee. It turned out O’Connor had tens of thousands of dollars of investments in credit card companies, including members of the U.S. Chamber of Commerce. Amazingly, O’Connor recused himself from the case, putting it in the hands of the only other judge in the Fort Worth division, a Trump appointee named Mark Pittman. That didn’t seem like a bad draw for the Chamber either.
Judge Pittman asked for an expedited briefing to determine whether the Northern District of Texas was the proper venue for the case. The plaintiffs asked for a preliminary injunction of the rule anyway, saying that it would be “an abuse of discretion” to hold a briefing. One thing you don’t want to do in a high-stakes lawsuit is piss off the judge.
“While the Court appreciates Plaintiffs’ efforts to educate the Court on what they believe the Court does and does not need, the undersigned Judge has been a federal district Judge for almost five years and a judge generally for nearly a decade,” Pittman wrote in a strident order denying the preliminary injunction.
So both sides briefed, and a week later, Judge Pittman gave his answer: Get this case out of my court. “It is indisputable that this action could have been brought in the D.D.C. [District of the District of Columbia],” Pittman wrote, noting that only one of the six plaintiffs resides in the Fort Worth division, that none of the credit card companies affected by the rule resides in Fort Worth, and that of the ten attorneys involved in the case, eight of them live in Washington.
Under the theory of the plaintiffs, Pittman wrote, they “could find any Chamber of Commerce in any city of America and add them to this lawsuit in order to establish venue where they desire … Venue is not a continental breakfast; you cannot pick and choose on a Plaintiffs’ whim where and how a lawsuit is filed.” He ordered the case moved to D.C.
Pittman was careful to say that future cases involving federal lawmaking wouldn’t have to be transferred to D.C., though I honestly don’t see why. As Pittman says, “The Rule at issue in this case was promulgated in Washington D.C., by government agencies stationed in Washington D.C., and by employees who work in Washington D.C. Most of the Plaintiffs in this case are also based in Washington D.C.” That is largely true of lawsuits of this type, where Beltway trade groups try to knock out federal restraints on their particular interests. Those cases should not be shopped to the most favorable judge available.
Does this ruling signal that judges are fed up with these threadbare excuses to lard up their caseloads? I can’t get that optimistic. If Reed O’Connor didn’t have to exit the case because of his financial conflict of interest, it might have stayed right in Fort Worth. That’s why the Judicial Conference’s judge-shopping rule is important: Judges with a shred of respect for the law can get a chance to dispose of these cases properly.
The way that judicial confirmations go these days, Republican senators can essentially block any judge they don’t like, turning large swaths of the country into conservative judicial factories. Indeed, the O’Connor/Pittman tandem have largely the same worldview, and it’s not all that different for the rest of the Northern District of Texas. But there’s clearly a difference between the way those judges respond to obvious gamesmanship and corruption, even if they would generally rule the same way.
Unfortunately, such displays of character are not uniform on the federal bench. Without a definitive judge-shopping restriction, such as through a statutory law, these tactics are sadly likely to continue. “While the Chamber has suffered a major setback in protecting their big bank members who drain consumers of billions of dollars in needless and excessive penalties every year,” said Tony Carrk, executive director of Accountable.US, in a statement, “don’t expect them to stop clogging up with the court system any time soon.”
