Left to right: Law Professor Steve Vladeck and Judge Edith Jones discuss judge-shopping in Washington, D.C. (Federalist Society/YouTube).
A judge on the conservative U.S. Court of Appeals for the Fifth Circuit harshly criticized a prominent legal scholar and law professor during a recent panel discussion hosted by the Federalist Society.
Georgetown University Law Professor Steve Vladeck studies, among other subjects, “judge-shopping,” the process of filing lawsuits in single-judge divisions — typically to obtain sweeping national injunctions from a known-to-be friendly court.
On Thursday, during a forum entitled “The Continued Independence of the Judiciary,” the law professor was the target of criticism by Circuit Judge Edith H. Jones, beginning with a bit of a send-off, an apparent reference to Vladeck’s former position at the University of Texas.
“Professor Vladeck has left the Fifth Circuit and the Fifth Circuit is happy to announce that Professor Vladeck will soon be criticizing the Ninth Circuit and the D.C. Circuit where I believe many initiatives of the Trump administration will find an immediate litigating home and a federal judiciary that is at least 90% appointed by presidents whose appointments have not been criticized,” Jones began.
Then the Reagan-appointed judge got to the heart of her critique.
“I hope to respond here today in defense of my colleagues — Fifth Circuit district judges — who came under relentless attacks during the last several years by certain professors,” she continued. “Including notably, Professor Vladeck, for what he considers close to unethical situations in litigation which have existed since the dawn of judging.”
Vladeck’s research into judge-shopping and forum-shopping has focused, in particular, on Texas federal district courts.
In the Lone Star State, whose federal courts fall under the purview of the Fifth Circuit — along with Louisiana and Mississippi — several trial courts are served by a lone judge. Thus, the process of forum-shopping becomes whittled down to judge-shopping — by filing in any given division, certain litigants are guaranteed to avoid a lottery assignment and obtain a particular judge in a surefire fashion.
More Law&Crime coverage: The federal judiciary is trying to put a stop to ‘judge shopping’ for nationwide injunctions in divisions where only one friendly jurist sits
In September, Vladeck, responding to another judge on a popular law blog, argued why he believes this behavior is “problematic.” The law professor highlighted 47 incidents in which Texas Attorney General Ken Paxton sued to stop Biden administration policies.
“Of those 47, zero have been filed where the Texas government is actually located (i.e., Austin),” Vladeck wrote. “[Twenty-four of those lawsuits], including yesterday’s, have been filed in single-judge divisions; another six were filed in divisions where Texas had a 95% chance of drawing a specific judge. And when asked why it keeps filing in these geographically obscure (and unrelated) parts of the state, Texas has publicly conceded that it has nothing to do with that particular forum’s connection to the litigation, but rather is entirely because it wants those judges to hear those cases.”
Jones described this behavior as nothing nefarious — insisting litigants have aimed to choose one judge over another since the period described in the Bible’s book of Genesis.
“Something’s going on here, and it’s very unsavory,” the judge said. “Attacks on the judiciary, I fully agree with the others, are ultimately attacks on the rule of law.”
After that, the panel discussed other matters for a while — but Vladeck steered the conversation back to judge-shopping.
Attempting to inject some levity, the law professor suggested he and the judge should “just go get a beer and have a chat” before stressing that he “never used the term ‘close to unethical’ in describing anyone’s behavior.”
“My critique is that the rules allow this behavior,” Vladeck said. “I do think there is a tendency in folks who are invested in one side of these ideological disputes to downplay evidence of the same problem in contexts that are less ideologically charged.”
The law professor noted that a single-judge district in the medium-sized Texas city of Waco received over 23% of federal patent law litigation in 2021 — prompting a rebuke from a Republican Party senator in North Carolina and Chief Justice John Roberts. The upshot of these facts, Vladeck argued, was that institutional concerns about judge-shopping exist that have nothing to do with divisions between liberals and conservatives.
Jones, for her part, was unmoved by the argument — or the alcohol-themed entreaty.
“I have studied Professor Vladeck,” the judge said in response — and then theatrically raised a manilla folder with documents askew and poking out. “And this is a file of his articles, amicus briefs, and tweets regarding the process of judge-picking that he criticizes so heavily.”
As she opened the file to rifle through its contents in front of the audience, Jones went on to read several tweets of Vladeck’s, along with the title of one legal article, which she said evidence a series of “attacks” on “the character” of various Republican-appointed judges.
Fifth Circuit Judge Edith Jones raises a file in the air (Federalist Society/YouTube).
Vladeck protested that Jones was intentionally leaving out some of the context necessary to understand what he wrote.
“The consequence of all this is that Judge [Mattthew] Kacsmaryk is under 24-hour per day protection,” Jones said — referring to a Trump-appointed judge who hears every case filed in the Northern District of Texas’ Amarillo division. “And he has five kids.”
The implication was clear enough. And the panel grew increasingly tense as the barbs flowed from one to another.
At one point, during the back-and-forth, Vladeck sarcastically thanked the judge for proving his point “about how we’re shouting past each other and not engaging on substance.”
At another point, Jones angrily slammed her hand down on the table to keep the law professor from interjecting.
“I think it’s rather unfortunate what’s happened this afternoon,” Vladeck said in response to Jones’ criticisms. “And I wish that it weren’t so. But I also think that it says a lot about where we are that instead of having a conversation about whether this is a good thing or not, we decide to turn this into a ‘Can I put words into your mouth that make you look bad?’ And it seems like that’s not the kind of debates that I thought the Federalist Society was interested in sponsoring, and I’m disappointed it’s the conversation we’ve had today.”
Jones stuck to her guns.
“The point of attacking these judges is to diminish their reputations, to suggest that the state of Texas and other state attorneys general who filed in these jurisdictions are doing something improper,” she said.
The judge ended her comments where they began: saying she looked forward to Vladeck focusing on California the next four years — an allusion to what will likely be efforts to find sympathetic courts who might pause Trump administration policies disfavored by Democrats.
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