Have you wondered how Republican states suing to overturn each and every one of President Biden’s more progressive immigration policies manage to get their cases heard by right-wing, Trump-appointed federal judges?
The latest lawsuit, brought by 20 Republican attorneys general, challenges the humanitarian parole that is part of a January package of Biden administration proposals. The lawsuit does not challenge the rest of the package, which includes expansion of Title 42 bars to asylum, an agreement with Mexico allowing expulsion of 30,000 Venezuelans, Cubans, Nicaraguans and Haitians to Mexico each month, and plans for further restrictions on asylum.
Of course not. The Republican states are only interested in blocking the narrow humanitarian parole provision that would allow 30,000 people from the four designated countries to get two-year visas to the United States—if they have the money and connections for passports, airline tickets, and U.S. sponsors. They filed their latest lawsuit so that it will be heard by Judge Drew Tipton, a Trump appointee who has a reliable record of ruling against Biden administration policies.
Led by Texas Attorney General Ken Paxton, Republican lawsuits challenge not only immigration policies, but also Medicare, COVID, environmental, and other policies.
Stephen Vladeck, the Charles Alan Wright Chair in Federal Courts at the University of Texas School of Law and author of The Shadow Docket, has an explanation for how Texas Attorney General Ken Paxton can consistently get the federal district court judges that he and the other Republican attorneys general want, and usually the temporary injunctions they want from those judges. The key is filing the lawsuits in Texas federal courts where a single judge is assigned all or almost all civil cases.
In 11 of Texas’s 26 divisions, all or almost all civil cases filed are heard by a single judge. If a case is filed in that division, you can be sure of the judge who will hear it.
These are:
- Judge Alan Albright (nominated by Trump) hears cases in the Waco division;
- Judge Ada Brown (nominated by Trump) hears cases in the Galveston division;
- Judge David Counts (nominated by Trump) hears cases in the Midland-Waco and Odessa divisions;
- Judge James Gilstrap (nominated by Obama) hears cases in the Marshall division;
- Judge Matthew Kacsmaryk (nominated by Trump) hears cases in the Amarillo division;
- Chief U.S. District Judge Alia Moses (nominated by George W. Bush) hears cases in the Del Rio division;
- Judge Reed O’Connor (nominated by George W. Bush) hears cases in the Wichita Falls division;
- Judge Robert William Schroeder III (nominated by Obama) hears cases in the Texarkana division;
- Judge Drew Tipton (nominated by Trump) hears cases in the Victoria division;
- Judge Michael Truncale (nominated by Trump) hears cases in the Lufkin division.
On January 26, Vladeck tweeted two charts that show how it works. Here’s the tweet and two charts from Professor Vladeck:
“Updating my tracker of suits Ken Paxton has filed against Biden policies in Texas courts: Image 1 lists all 26 suits, including where they were filed, odds of drawing that judge, and subject matter. Image 2 breaks out *all* of Texas’s divisions to show how Paxton exploits them.”
Choosing a right-wing, Trump-appointed judge does not absolutely guarantee that Ken Paxton and his posse of Republican attorneys general will ultimately prevail. Even Trump-appointed judges do not always buy the most outlandish claims—as in the Mar-a-Lago investigation case, where two Trump-appointed appellate judges joined in a scathing opinion overturning the order of a Trump-appointed district judge. And cases get appealed, with opportunities for appellate courts and eventually the Supreme Court to review and reverse district court rulings.
All of that takes time, sometimes years. And the Supreme Court was packed with conservatives during the Trump years, which also filled appellate and district court vacancies with highly conservative judges. During his four years, Trump appointed 174 federal district court judges, 54 appeals court judges, and three Supreme Court justices. For context: there are a total of 673 federal district court judges, 179 federal appellate court judges and nine U.S. Supreme Court justices.
If anyone doubts the importance of the presidency or of control of the Senate, just remember: the president nominates all federal judges, from district court to Supreme Court. Then the Senate confirms or rejects each nominee. Under the Constitution, all federal judges have lifetime appointments.
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