Fifth Circuit’s Jones Tears Into Vladeck Over Judge-Shopping

Fifth Circuit Judge Edith Jones delivered a forceful rebuke of what she described as “unsavory” attacks against the judges within her circuit, spurring a tense exchange with a Georgetown Law professor who studies judge-shopping.

US district court judges within the conservative US Court of Appeals for the Fifth Circuit have come “under relentless attacks during the last several years by certain professors, including notably, Professor Vladeck,” said Jones, a Reagan appointee. Jones was referring to Georgetown Law professor Stephen Vladeck as they served together at a Federalist Society conference panel Thursday.

“Something’s going on here, and it’s very unsavory,” Jones said. “Attacks on the judiciary, I fully agree with the others, are ultimately attacks on the rule of law.”

Several Texas trial courts within the Fifth Circuit contain single-judge divisions, a structure that permits parties to choose their judge when filing cases, a practice known as judge-shopping.

The Northern District of Texas, in particular, has emerged as a hub for conservative litigants challenging Biden administration rules in these single-judge courts where Trump-appointed judges generally hear all cases.

Vladeck had argued, during his opening remarks, that congressional efforts to curb judge-shopping are “not a threat to judicial independence.”

Jones, speaking directly after, fired back that Vladeck, who recently moved to Georgetown from the University of Texas, should now turn his attention to liberal-backed suits in the Ninth and D.C. Circuits.

She said that litigants have preferred one judge to another “since the dawn of judging,” and highlighted instances where liberal litigants have filed challenges in courts with a majority of Democratic appointees.

She also noted that in some of the cases that have come under criticism for judge-shopping, the litigants themselves didn’t raise an issue, and the Fifth Circuit upheld the lower court ruling. “I guess we’re just as bad too,” Jones said.

‘Get a Beer’

After Jones spoke, Vladeck attempted to defuse the exchange, lightheartedly suggesting that they “just go get a beer and have a chat.”

But Jones responded by saying she had “studied” Vladeck and then held up a pile of papers she said contained printed copies of his writings and tweets, before proceeding to read out specific tweets of his that she considered personal attacks.

The “consequence” of these attacks, she said, is that Judge Matthew Kacsmaryk, a Trump appointee who hears all cases filed in the Northern District of Texas’ Amarillo division, is under round-the-clock protection, and an individual was indicted for making a death threat against him.

Vladeck said that he hasn’t criticized Kacsmaryk’s qualifications or accused attorneys of acting unethically. However, the volume of lawsuits by conservative litigants filed in these single-judge divisions is “a pattern worth talking about,” he said.

“I think it’s rather unfortunate what’s happened this afternoon,” Vladeck said. “It seems like that’s not the kind of debate that I thought the Federalist Society was interested in sponsoring, and I’m disappointed it’s the conversation we’ve had today.”

The panel was held on the first day of the Federalist Society’s annual convention, in what is likely the largest gathering of conservative lawyers since Donald Trump won re-election earlier this month.

The panel, on the continued independence of the judiciary, was moderated by Fifth Circuit Judge James Ho, a Trump appointee. In his remarks, he described a “war on the judiciary” and culture where judges are “ostracized” for ruling against how their critics would prefer.

Misconduct Complaints

Jones also took aim at the judicial misconduct complaint process, which allows members of the public to file complaints against judges for perceived ethical violations, saying those complaints are “distracting.” And she criticized the judiciary’s work on a draft policy to require organizations filing amicus brief to disclose their financial backers.

At the end of the panel, during the question-and-answer session with audience members, Judge Pauline Newman, a 97-year-old who was suspended from the Federal Circuit over concerns about her mental fitness, described her situation as a “fresh development in judicial independence” and asked the panelists for their thoughts.

Jones said she had a “very serious doubt” about the removal process for Newman, and that what happened to her “could happen to any of us.”