[By forum-shopping their way to a hearing before a zealot judge,
conservatives hope to win an unwinnable case—and not for the first
time.]
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CONSERVATIVES HAVE A SKETCHY NEW LEGAL PLOT TO BAN THE ABORTION PILL
 
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Elie Mystal
January 26, 2023
The Nation
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_ By forum-shopping their way to a hearing before a zealot judge,
conservatives hope to win an unwinnable case—and not for the first
time. _

Matthew Kacsmaryk at his Senate Judiciary Committee hearing on
December 13, 2017. , Senate Judiciary Committee

 

Recently, the Food and Drug Administration approved mifepristone (a
drug that can be used with msoprostol to induce abortions) for wider
distribution
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It can now be picked up, with a prescription from a doctor, at
pharmacies willing to stock it, and it can be sent through the mail.
While mifepristone was initially approved for use in the United States
back in 2000, you had to see the doctor in-person to get it. The
recent change is a welcome victory for reproductive rights, a rare
case of authorities trying to expand access to abortion.

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
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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 who is basically
the bad guy from a Nathaniel Hawthorne novel made flesh. He was an
anti-gay crusader for a Christian right law firm
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raised him up to be a judge. He claims that homosexuality is a
“disorder.” He’s attacked the right to contraception
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denounced the “sexual revolution” of the 1960s and ’70s. Senator
Chuck Schumer said
[[link removed]] Kacsmaryk
“has demonstrated a hostility to the LGBTQ community bordering on
paranoia.”

Since rising to the bench, Kacsmaryk has functioned as a
wish-fulfillment machine for the most wackadoodle right-wing causes
and legal theories. He once ordered the Biden administration to
reinstate Trump’s “Remain in Mexico” immigration policy—and
then tried to do it again
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even after he was overruled by the Supreme Court. In addition to the
mifepristone case, Kacsmaryk will also be presiding
over _Children’s Health Defense v. Washington Post_
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That’s the ludicrous case in which death-cult anti-vaxxers allege
that major media organizations violated antitrust laws and
“conspired” to shut down anti-vax websites because the companies
refused to publish or promote vaccine misinformation.

These cases have 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.”

Forum shopping is an old legal trick wherein plaintiffs file their
lawsuits in jurisdictions with laws or precedents most favorable to
their claims. 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.
Sometimes it’s advantageous to get a company in state court in front
of a local jury (like Hulk Hogan’s successful attempt to
destroy _Gawker_ using Florida laws); other times it’s better to
get a case removed to federal court (if, say, you are trying to sue an
employer for racial discrimination in the South).

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.
Nonetheless, forum shopping persists. Lawyers, for instance, still try
to cherry-pick which states to file federal lawsuits in: 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.

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.

Generally speaking, district court judges—the trial judges in the
federal system—are chosen at random from the available judges in a
particular circuit. But some circuits or regions are small or have
peculiar quirks when it comes to the assignment of judges. 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
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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_
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this rule makes Judge Kacsmaryk “one of the most consequential
public officials in modern-day America.”

But Kacsmaryk is not the only judge right-wingers ask to make their
dreams our nightmares. The Trump legal team tried successfully to get
their stolen-documents case in front of a Trump appointee in Florida:
Aileen Cannon. She dutifully issued
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rulings at odds with any plausible reading of the law. 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
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challenge another Biden immigration policy.

Indeed, under Paxton, Texas uses a mash-up of old- and new-school
forum shopping to get the judge it wants. In an amicus brief
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by the National Immigration Law Center in the case of _US v. Texas
and Louisiana_ [[link removed]], an immigration
case, lawyers Steven Vladek and Max Wolson point out that Texas
regularly removes cases to federal court to get specific judges, and
it works. “In many of these cases, Texas has had a 95 percent (or
greater) chance of drawing a specific judge. Those courts have
repeatedly issued nationwide injunctions against a growing array of
actions and initiatives undertaken by the Biden Administration.”

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 higher courts are supposed to step in and stop
district court judges who get out over their ideological skis.

But certain 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. In the meantime, people like Tipton are free to
frustrate key parts of Biden immigration agenda, and people like
Kacsmaryk are free to make gay-bashing a judicial art form.

This problem of judge shopping is not going away. That’s not just
because Trump appointed a battalion of suspect judges who view the
bench as the judicial velvet glove to the MAGA stone fist. It’s
because any judge, anywhere, can be ripe for targeting, because every
judge has some legal idiosyncrasy that might be exploited. We see this
on the Supreme Court all the time (think Anthony Kennedy when it came
to LGBTQ rights or Neil Gorsuch when it comes to Native affairs). If I
were a federal judge, for instance, I would appear relatively
normal—until somebody brought me an animal welfare case. At that
point, I would adopt literally any crazy theory of rights or standing
that would make Fluffy’s life better, prevailing precedents and
normal methods of interpretation be damned.

My solution, my “Elie Doctrine,” would be to restore randomness to
the judicial assignment process and break free of the antiquated
notions of federalism that tie judges to their states. 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. We live in the future. A judge
from Alaska is just as capable of understanding how the FDA operates
as a judge in Texas, and they can get there in half a day. They’re
not going to melt. Indeed, our entire system of “circuit” courts
arose from the fact that judges needed to travel to courthouses to
preside in person over their cases. 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.

Another option is that judges could conduct a hearing via Zoom. Again,
we have the technology. The idea that there’s only one judge who can
physically preside over cases in the Texas Panhandle is a silly
anachronism. We don’t have to live with a system so biased that
plaintiffs are picking their own judges to maximize their chances of
winning.

Of course, making such a change would require politicians in Congress
to get serious about reforming the Judicial Branch. And that requires
them to care about the Judicial Branch, understand how it is broken,
and take tough votes to fix it—all over the objection of the party
that benefits from the courts’ being broken.

Until Congress fixes this, it’s going to get worse. Right-wingers
have figured out how to exploit the system, and even if liberals get
in the game and exploit it back, that still leaves us with an
exploited system where nobody can trust they’ll get an impartial
arbiter.

I don’t know how Judge Kacsmaryk will rule on abortion pills or
anti-vax conspiracy theories or any of the other inane lawsuits
conservatives bring before him. I just know that right-wingers think
they have a better chance to prevail if they get into his courtroom,
and they have manipulated the system to do just that. That’s not
something that would happen in a functioning judiciary. Laws are not
supposed to be dependent on whether a lower-court judge wakes up on
the bigoted side of the bed or the misogynist side of the bed.

_Copyright c 2023 The Nation. Reprinted with permission. May not be
reprinted without permission
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Distributed by PARS International Corp
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_Please support  progressive journalism. Get a digital subscription
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Nation for just $24.95!  _

_ELIE MYSTAL is The Nation’s justice correspondent and an Alfred
Knobler Fellow at the Type Media Center. His first book is the New
York Times bestseller Allow Me to Retort: A Black Guy’s Guide to
the Constitution [[link removed]]. He
can be followed @ElieNYC._

_THE NATION [[link removed]] Founded by abolitionists in
1865, The Nation has chronicled the breadth and depth of political
and cultural life, from the debut of the telegraph to the rise of
Twitter, serving as a critical, independent, and progressive voice in
American journalism._

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