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‘The only remaining explanation’: DOJ accuses Texas AG Ken Paxton of ‘judge shopping’ to get immigration case before Trump appointee

Judge Drew Tipton and Ken Paxton

U.S. District Judge Drew Tipton (L) (U.S. District Court for the Southern District of Texas), Ken Paxton (R) (via Joe Raedle/Getty Images)

The Department of Justice formally accused top Texas prosecutors of “judge shopping” by strategically ensuring that lawsuits against the Biden administration proceed before friendly judges, including one who was memorably criticized by lawyers as the would-be “emperor of United States immigration policy” following a sweeping anti-immigration ruling in 2021.

In January, Texas and 19 other Republican-led states sued the Department of Homeland Security (DHS) and challenged the administration’s use of “parole authority” for immigrants and alleged that DHS’s “abuses” will continue to “allow potentially hundreds of thousands of additional aliens to enter each of their already overwhelmed territories.”

The Office of Texas Attorney General Ken Paxton (R) filed the lawsuit in U.S. District Court for Southern District of Texas, Victoria Division—a choice that the Biden administration’s DOJ now asserts was motivated entirely by Texas’s desire to get the case before U.S. District Judge Drew Tipton, a Donald Trump appointee. Notably, the case was not filed in the division containing Houston or other major metropolitan areas, and was not filed in a division along the Southern border.

Given Victoria’s lack of connection with the case, the DOJ concluded that judge-shopping is “the only remaining explanation.” Moreover, according to transcripts of court appearances in the case, Texas actually admitted that it chose Victoria Division because it preferred Tipton.

In a motion to change venue filed on Feb. 28, the DOJ quoted from the courtroom transcript, in which the Texas AG’s office explained: “The case is being filed in Victoria, quite frankly, Your Honor, because of our experience with you.”

What’s more, said the DOJ, Texas never files cases against the federal government in any divisions where judges are randomly assigned to cases—only in divisions where the Lone Star State knows ahead of time which judge will preside over the case. Per the DOJ’s recent brief:

In fact, all 28 of the State’s lawsuits against the federal government filed in Texas federal district courts have been filed in just seven Divisions where local rules severely limit the number of judges to whom the cases could be assigned (Victoria, Amarillo, Galveston, Lubbock, Tyler, Fort Worth, Midland), including 18 lawsuits in Divisions where the case would necessarily be assigned to a single, pre-determined judge (Victoria, Amarillo, Galveston, Midland), and no less than seven here in Victoria.

The DOJ said cases have not been filed in venues actually connected to the lawsuit, nor have they been filed in the state capital, where most of Texas’s state agencies are headquartered. When pressed on whether the choices were made for the purpose of judge-shopping, Texas’s lawyer said in court that he “did not ‘know why our office chooses to file in seven divisions over and over.'”

Since being appointed to the bench in 2020, Tipton has issued multiple sweeping rulings in Texas’ favor in cases against the Biden administration. Immigration lawyers have criticized Tipton’s jurisprudence by saying it represents “judicial activism at its worst,” as the judge has handed down nationwide rulings that strip DHS and Immigration and Customs Enforcement (ICE) of critical powers to regulate immigration.

Although the DOJ has said that it believes Tipton to be impartial, it contends that Texas’s choice to file in divisions in which a single judge presides over all civil litigation is strategic to the point of being legally improper.

During oral arguments over the change of venue, DOJ lawyer Erez Reuveni made the case that permitting plaintiffs to choose judges undermines public confidence in the judicial system.

In response, Tipton suggested that the remedy to any such problem might rest within the DOJ itself.

“Don’t you think if the public heard the Department of Justice say that, that it would go a long way towards addressing your public perception concern?” Tipton asked.

The decision whether to transfer the case to a different division rests with Tipton himself, and he is expected to rule on the motion within the next few weeks.

Tipton is not the only Trump-appointed judge in Texas that the DOJ has sought to transfer cases away from. The administration also asked U.S. District Judge Matthew Joseph Kacsmaryk to transfer a Texas lawsuit over climate-change regulations and requested that U.S. District Judge James Wesley Hendrix transfer Texas’s challenge to an annual federal spending bill.

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos