San Antonio Express-News (Sunday)
Paxton’s legal tactic: Find right judge
Texas AG’s success rate vs. Biden’s policies leans on filing in courts with Trump picks
During an interview at the Conservative Political Action Conference in Orlando less than a week before the March 1 primary, Texas Attorney General Ken Paxton gave his elevator pitch to voters.
“We’ve got a 90 percent success rate against the Biden administration,” he said. “I just want to go back and finish that fight.”
Even after earning the most votes of any candidate yet still not winning outright — he’ll face off against second-place finisher, Land Commissioner George P. Bush, in the May 24 runoff — Paxton has continued to trumpet this number.
“I’m proud of my office’s winning record against Joe Biden’s radical policies,” he tweeted on
March 22. “I’ve filed 25 lawsuits against Biden’s reckless administration & we’ve won more than 90% of these.”
The rate is closer to 71 percent including cases where judges temporarily blocked President Joe Biden’s policies but a final resolution is still pending, according to a Hearst Newspapers analysis.
Most cases are still winding their way through the courts. Three of five cases that have been resolved swung in Paxton’s favor.
Paxton spokesman Alejandro
Garcia countered that the office has a 94 percent success rate including defensive cases in which the state has been sued by the federal government. Garcia did not respond to multiple requests for clarification.
The second-term Republican attorney general has used his office as a prominent national foil against Democratic presidents, similar to now-Gov. Greg Abbott’s days fighting the Obama administration.
“I go into the office, I sue the federal government and I go home,” Abbott famously said in 2013 when he was attorney general. He sued President Barack Obama 28 times over about five years for an average of less than one case a month.
Paxton has taken that mission to a new extreme. In about 14 months, he has averaged nearly two cases a month. So far, he’s won or been granted injunctions in 10 cases and lost or failed to get an injunction in four. The remaining 11 are awaiting an initial ruling.
“President Biden represents a new and unprecedented threat
to Texas and America,” Garcia said. Paxton “has no choice but to aggressively sue and win — over and over again.”
The primary policy area in which Paxton has attacked Biden in court has been immigration, followed by COVID-19 restrictions and vaccine mandates. He also has sued on environment and economic issues.
Robert Henneke, executive director and general counsel at the conservative Texas Public Policy Foundation, said Biden has relied more heavily on unilateral executive orders, rather than typical agency rulemaking processes.
“This administration, for political reasons, lacks the patience to be able to go through the time required to follow the traditional administrative steps,” Henneke said. “In his haste to implement these political promises, he made his efforts legally vulnerable.”
But legal experts who have been critical of Paxton say he purposely files in courts that are likely to land before a Trump-appointed judge, a practice known as “judge shopping.” The majority of Paxton’s cases are before judges appointed by former President Donald Trump, who endorsed Paxton in his re-election race.
“It’s supposed to be a fundamental principle of our legal system that the plaintiff can’t pick their judge,” said Stephen Vladeck, a law professor at the University of Texas. “And yet, by filing in Amarillo, Lubbock, Galveston, and other places nowhere near where OAG is actually located here in Austin, OAG is repeatedly manipulating the system to try to pick not just courts likely to be sympathetic to its claims, but specific judges likely to be sympathetic.
“It’s not just home-field advantage; it’s home-field advantage where the home team is also handpicking the referee.”
Texas has four federal judicial districts, and those are further broken up into four geographic divisions. Every court divides up caseloads differently, and that’s what allows litigants to anticipate ahead of time which judge is most likely to receive their case.
Paxton files most of his cases in the Amarillo division of the Northern District of Texas, which has two judges, but the court set up assignments such that one Trump-appointed judge, Matthew Kacsmaryk, hears 95 percent of civil cases, court documents show.
A 2018 paper published in the Columbia Human Rights Law Review found that there are at least 81 divisions, across 30 district courts in the U.S., in which one or two judges hear every case. It showed Texas had more divisions where one judge heard more than 50 percent of cases than almost any other state.
While divisional judgeshopping is legal, Vladeck said it raises questions about the strength of the suits and increases litigation costs, which ultimately come out of taxpayers’ pockets, by requiring the office to send its lawyers across the state.
Henneke said that’s a “long-standing, acrossthe-board tactic” used by attorneys on either side of the aisle to consider whether judges in a certain district might have the “history or background to give expertise in a case.”
A case that’s pending can still have tremendous impact when a judge blocks a policy from going into effect, even if only temporarily. Take the first case Paxton filed against the Biden administration over the president’s 100day moratorium on deportations, one of his top immigration pledges when he took office.
U.S. District Judge Drew Tipton, a Trump appointee, quickly barred the government from enforcing the policy through various court orders. In his first major victory, Paxton withdrew his suit in May after the policy expired, and the Biden administration declined to extend it.
In another consequential win for Paxton, the Biden administration was forced in December to reinstate a Trump-era program that required many asylum-seekers to “remain in Mexico” while waiting for their cases to be decided.
That came after the Supreme Court ruled the federal government had to obey an order by Kacsmaryk, the Trump appointee in Amarillo, who ruled that the administration had failed to explain its reasoning for ending the policy. The high court will hear arguments on the merits of the case Tuesday.