Fifth Circuit’s Ho Cites ‘Political Attacks’ on Judge Shopping

Fifth Circuit Judge James Ho has heightened his criticism of a new policy meant to prevent “judge shopping,” saying the federal judiciary has “decided to credit these political attacks” on single-judge divisions in Texas.

In a speech Monday to the Midland County Bar Association, Ho said he took issue with the policy — which calls on courts to randomly assign cases that seek state or nation-wide relief — as he believes it doesn’t address the real issues surrounding judge shopping.

Texas federal court divisions with only one or a handful of judges have come under particular scrutiny, as conservative litigants have filed lawsuits in those courts challenging Biden administration policies.

“The Judicial Conference isn’t shy about why they’re doing this,” Ho said in a copy of his remarks prepared for delivery reviewed by Bloomberg Law. “They’re targeting single-judge divisions. Its announcement repeatedly mentions ‘single-judge divisions’ as the purported evil they’re trying to combat.”

Ho said that there should be more focus on “forum selling,” or judges “tilting their decisions in order to attract the cases they most want.”

Ho, who Donald Trump appointed to the New Orleans-based US Court of Appeals for the Fifth Circuit, said that the issue has come up in bankruptcy courts, pointing to findings by a legal scholar that suggest bankruptcy judges are granting requests for large attorneys fees in those cases. Ho also said that “forum selling” is similarly a problem in patent cases, citing Fifth Circuit decisions to grant petitions to transfer cases out of certain federal court divisions in Texas.

Ho said that he has found zero instances of the Fifth Circuit granting similar mandamus petitions for denials of venue transfer out of the Amarillo division. US District Judge Matthew Kacsmaryk is the sole judge in that court, where he ruled in favor of a challenge to the FDA’s authorization of the abortion pill mifepristone. That case is now before the US Supreme Court.

Ho also took issue with the Judicial Conference citing national injunctions as a motivation for the policy, saying that they remain a problem regardless of where a judge is located or who files the lawsuit. “We shouldn’t condition nationwide injunctions based on where you live—or what political views you hold,” Ho said.

Ho said that if judges “cater to the forum shaming strategies of the critics, then we’re no better than the forum-selling judges who distort their rulings to attract bankruptcy and patent cases. Whether we distort rules to attract cases or appease critics, we’re committing the same sin.”

Ho has previously been critical of the Judicial Conference policy, which was announced last month and is non-binding. Chief US District Judge David Godbey of the Northern District of Texas, which includes the Amarillo division, told Senate Majority Leader Chuck Schumer (D-NY) in a letter last month that his court hasn’t yet decided whether to adopt the policy.

Schumer and other Senate Democrats have since introduced legislation that would make the Judicial Conference policy a binding federal law, and Senate Minority Leader Mitch McConnell (R-Ky.) has unveiled a separate bill aimed at curbing national injunctions. But it’s unclear whether there’s enough political support in Congress for either measure.