The Federalist Society’s National Lawyers Convention got wild yesterday. As wild as a gathering of right-wing lawyers can get, anyway. Actually, I guess the wildest a gathering of right-wing lawyers can get was January 6, so this was just slightly less than the wildest a gathering of right-wing lawyers can get.
Fifth Circuit Judge Edith Jones took the opportunity of sitting next to Georgetown University Law Center Professor Steve Vladeck to go, I believe the technical term is “absolutely bonkers.” An eye-popping and eye-rolling meltdown from a federal judge.
Let’s not undersell this… conservatives were aghast at her behavior:
I think it’s fine to disagree with @steve_vladeck, and I do it all the time. But I fear that Judge Jones’s counterattack on this panel was unpersuasive and if anything proved the point. Steve is not the problem. https://t.co/HooKAZqlcY
— William Baude (@WilliamBaude) November 14, 2024
It all went down at the panel on The Continued Independence of the Judiciary, featuring Jones and Vladeck along with Paul Weiss’s Kannon Shanmugam, Washington University St. Louis Law School Professor Dan Epps, and moderated by fellow Fifth Circuit Judge James Ho.
(It starts at 14:04. For some reason automatic timestamps aren’t working. Sorry.)
The panel begins as a relatively straightforward academic talk, with Vladeck expounding upon the problems with the Supreme Court’s reliance on the “shadow docket” to issue rapid, unsupported legal rulings and the risk this poses to faith in the judiciary. He did not address the issue of single-judge courthouse shopping, a practice that’s notoriously employed within the Fifth Circuit, where plaintiffs can file their claim in tiny courthouses without fear that it will be randomly assigned to a judge within the district, but rather knowing with certainty that it will go to the lone judge sitting in that courthouse.
But that’s all Judge Jones wanted to talk about, so here we go.
Professor Vladeck has left the Fifth Circuit and the Fifth Circuit is happy to announce that Professor Vladeck will soon be criticizing the Ninth Circuit and the DC Circuit, where I believe many initiatives of the Trump administration will find an immediate litigating home and a federal judiciary that is at least 90% appointed by presidents whose appointments have not been criticized.
This is the sort of weird “own the libs” rhetoric that often finds its way into conservative legal opinions but is nonetheless vapid. The critique of the judge shopping problem in the Fifth Circuit isn’t about finding a vaguely friendly audience, but on the threat to legitimacy presented when litigants create artificial ties to bumblefuck locations in order to tie the hands of the whole federal government. Suing the FDA in DC and taking a turn at the judge assignment wheel doesn’t carry the same concerns as a case against the FDA with the one judge you know sits in Amarillo.
This is fast forwarding a bit, but Jones will never even attempt to address this specific defect in her loony rant. But we’ll offer her every unearned benefit of the doubt and suggest that she could be arguing that — fundamentally — having a 100 percent chance of drawing a Matthew Kacsmaryk for an abortion case is no different than having a 95 percent chance of drawing someone in the Northern District of California appointed by a Democrat (there is one G.W. Bush senior status judge still hearing cases in the district) to hear a challenge to mass deportation. If that’s the comparison she’s trying to make, it’s weak. Different judges are, well, different. An older Clinton judge might not see a case the same as a younger Biden judge. A Clinton judge confirmed by the post-Contract With America Senate will be different than an early Obama judge confirmed with a near supermajority. This argument is just categorically different than allowing plaintiffs to choose a single judge.
For the record, Jones will eventually quote Vladeck addressing this issue in the past and noting that none of the California judges are as ideologically committed to the “left” as Kacsmaryk — a former lawyer for an activist conservative religious group — is to the “right.” Jones dismisses this as “if that’s not an attack on the character of the judge, I don’t know what is.” In other words, she does not know what one is.
But we’re not even going to have that debate, because Jones is off in her own little world.
Back in the 1970s, there was one judge in Tyler, Texas named William Wayne Justice, and the government and the ACLU liked to file suit in Tyler, Texas, because William Wayne Justice was the arbiter of the constitutional law…. And in that role, he ran the Texas prison system, the Texas Mental health and retardation system, the Texas juvenile justice system, and when he tried to take over the Texas education system, the Fifth Circuit finally said that was maybe a bridge too far. That is what you call judge picking.
Sure… except, in these prepared remarks the only devious liberal example of judge picking she could find involved: the Texas prison system, the Texas mental disabilities program, and the Texas juvenile justice system. This seems significant that these are all TEXAS programs litigated in TEXAS. A plaintiff who legitimately resides in a far-flung rural area of Texas might have a beef against the state government wholly within that jurisdiction. That’s a whole order different than the present controversy about a judge in Amarillo imposing a national ban based on a challenge brought by non-Texans setting up a straw organization in town to attack a nationwide FDA regulation.
At least when Judge Ho tried to concoct a defense of this practice, he spun a story drenched in disingenuous rhetoric about preserving local access to justice. It made no sense either, but at least it was structured to address THE ACTUAL ISSUE AT HAND.
I hasten to point out that when [Vladeck] was filing his complaints, his articles, his amicus briefs, his tweets, calling out by name… started out with Judge Kacsmaryk, went to judge Reed O’Connor, later on included Judge Mark Pitman, Judge Cam Barker, Judge Jeremy Kernodle — that’s an awful lot of single judges, I might add — But he singled them all out for criticism, and yet the actual litigators in that case, which was often the US government, did not move to change venue. They did not move to recuse these judges… they did not even question the judge’s integrity.
I’m not sure she even understands the issue here.
As a litigant, the DOJ did not challenge these assignments because we all agree that this is how the law currently works. Vladeck is not disputing that this is what the law currently says, he’s making a normative argument that it should not work that way. That’s a policy question above the pay grade of any litigant in a specific case.
It’s why the Judicial Conference — headed by a Republican judge and ultimately answerable to a Republican Chief Justice — went out of its way to pass a rule to change this process. The proposed rule was limited to civil actions that seek to bar or mandate state or federal actions, “whether by declaratory judgment and/or any form of injunctive relief,” and required districts in those cases which clearly have no limited geographic tie to any out-of-the-way courthouse to be assigned through a district-wide random selection process.
Jones calls this a “strange idea” and revels in the Fifth Circuit refusing to comply, claiming that the Conference has no authority over them because district assignments are governed by statute. The Conference ceded the point. Some just want to see the world burn.
As Professor Vladeck conceded, while he’s complaining about single judge courthouses, he understands it’s the law and that Congress can change it if he can lobby them to do that.
This is sort of a side issue in the grand scheme of this, but later in the talk she characterized the prospect of legislation to reform this process as a threat. Almost as though this “just lobby Congress” concession was entirely disingenuous.
Oh snap! She brought a visual aide!
This purports to be her collection of Vladeck’s writings on the subject. What good faith reason would she have for bringing that to a panel when Vladeck isn’t even talking about single-judge courthouses? Hush now. Stop asking silly questions.
“This is not ad hominem, professor,” she begins, sounding the universal signal that this is very much going to be ad hominem. Most folks misunderstand what ad hominem means and use it as a synonym for insults. That’s not necessarily the case. It refers to the logical fallacy of substituting reasoned, substantive argument with claims that the audience shouldn’t believe the other side simply because they are, supposedly, just a bad person. And that has little to do with whether or not there are any “insults” involved.
But in this case, Jones replaced a substantive explanation why she thinks it’s good for the judiciary to have Potemkin Plaintiffs running to single-judge courthouses seeking national injunctions with the idea that Steve Vladeck is mean on Twitter. Making her stunt very much ad hominem, something that Dan Epps correctly pointed out, breaking his silence during the scuffle to note that this was all a whole lot of rhetorical fallacy.
This is at 1:17:00 or so and it’s worth watching as high comedic performance art. Jones is going to read clips to prove that Vladeck attacks judges personally. As a taste…
Well, I’ll read you a few tweet. uh, November 18th of 2022. Someone says, “isn’t judge picking a practice as old as the sun done by both sides?” Professor Vladeck says, “nope, forum shopping is, but literally picking a single judge is a relatively new phenomenon available only in a handful of (primarily red) states.”
So… not a personal attack on a judge. Maybe the others will get more direct (they will not).
Jones: Here’s Judge Hendrix denying DOJ’s motion to transfer. One of the articles…
Vladeck: What was the attack in that?
Jones: [Slams table]
Pretty much sums it up.
But Jones has one more bonkers conclusion to close off this trip through the Magical Folder Of Mundane:
The consequence of all this is, Judge Kacsmaryk is under 24 hour day protection. He has five kids. someone has been indicted for a depth threat against him.
Ahem.
Seriously, is that the consequence of criticizing district judge assignment rules? Because it’s probably the result of his abortion pill opinion that even this Supreme Court thought so poorly thought out that it unceremoniously kicked it to the curb.
That’s not the assignment rules. That’s the ruling. As Professor Brian Frye put it, “The idea that anyone would threaten the life of a federal judge based on a disagreement about how to apply venue rules is frankly risible.” Maybe that’s too far… maybe there’s a 1L out there whose civil procedure final was totally wrecked by the Fifth Circuit’s position and they missed out on law review and want revenge!
Probably not… let’s go with risible.
But if it has anything to do with assignment rules, it’s that the existing judge picking system — put aside whether or not the judges are ACTUALLY in the tank for one side or the other — feeds the impression that the litigants do see judges as bought and paid for toys. That’s bad for the judiciary. You’d think a judge might want to make a simple change that, likely without actually changing the outcome, would stifle that impression.
Instead, they’re just going to blame anyone questioning judge shopping for inspiring death threats. As always, these are just not serious people.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.