Judge Shopping For Me, But Not for Thee with Chris Geidner

Episode Notes

Transcript

Chris Geidner:

The Fifth Circuit is so extreme. It is forcing the Supreme Court to take cases it otherwise wouldn’t because it’s issuing rulings that are just like totally outside of any rational law. The Mifa PRI Stone case is the perfect example. No, the Justice Department and Denko Laboratories do not want to go to the Supreme Court asking them to hear an abortion case. No,

Announcer:

That’s today’s guest on SideBar. Chris Geidner, publisher of the Law Dork Newsletter. SideBar is brought to you by Monterey College of Law, San Luis Abispo College of Law, Kern County College of Law, empire College of Law, located in Santa Rosa and the colleges of Law with campuses in Santa Barbara and Ventura. Welcome to SideBar discussions with local, state and international experts about protecting our most critical individual and civil rights Co-hosts Law Deans Jackie Gardina, and Mitch Winick

Jackie Gardina:

Mitch. Throughout this past month, we were waiting on pins and needles for nine unelected individuals with lifetime appointments to make life altering decisions for millions of people. Alexander Hamilton famously wrote in the Federalist Papers that the judiciary is the weakest of the three branches of government. And as we discussed in an earlier episode with Steve Blaik, author of The Shadow Docket, it was the weakest branch. No one initially wanted to even serve as a justice. Oh, how times have changed

Mitch Winick:

Jackie as we consider the current role of the US Supreme Court, I certainly won’t disagree with those who believe that the current conservative majority on the court is on a politicized mission to reinterpret the Constitution through a specific cultural and religious lens. However, I look at the historically low and declining trust and respect for the current court, and it makes me wonder if they’re losing the public’s trust in their role as the authority for defining our constitutional rights.

Jackie Gardina:

Although we’re recording this episode, while there are still several landmark cases pending with the court, there is certainly plenty to discuss about this terms cases, issues related to form shopping and federal courts and the ethical behavior of federal judges and justices. And as usual, we’ve invited someone who follows these issues closely to join us today on SideBar.

Mitch Winick:

Chris Geidner is a journalist whose Law Dork Newsletter covers the Supreme Court law and politics. His more than two decades in journalism includes a widely recognized coverage of L-G-B-T-Q issues, the criminal legal system, and other complex legal and political questions. He’s written for the New York Times MSNB, buzzfeed News and other national media platforms. Chris, welcome to SideBar.

Chris Geidner:

Thank you so much for having me.

Mitch Winick:

We previously had long-term Supreme Court correspondent Nina Totenberg as a guest on SideBar. Nina talked about the changes that she’s observed in the court over several decades. Of course, Nina’s perspective is entirely unique, particularly because of her personal access to many of the justices over the years. But I’m interested in what changes you’ve observed in the 20 years that you’ve covered the court, and particularly in the relationship among the justices as reflected in their opinions and comments from the bench and recently in public.

Chris Geidner:

The first term that I was covering the court in person was the October, 2009 term, so it was 2010 case arguments. And so we are even that, it’s now we’re going on 15 years of me watching in-person arguments from the justices. And I think that we have seen and they’ve acknowledged that they’ve definitely had some difficult times in recent years. Bluntly, the ethical questions over the past year and the court’s response to it, and it’s something that I’ve pointed out in terms of the power that the chief justice if he wanted does have to make a difference. Is that what we saw, for example, with as weak and voluntary as it was with the ethics code last year, you had these ProPublica stories start coming out. Initially you had that letter from the Chief Justice that said, I’m not coming into the hearing in the Senate, but look, here’s a sheet of paper that 10 principles that we all adhere to and they’re the same principles that we’ve always adhered to and they’re not a code of conduct, but hey, is this enough?

And that one was more than nothing. But then when there was more and more pressure for the court to adopt a code of conduct and this call for it and discussions at least from the Democrats in the Senate on actually trying to pass an enforceable code of conduct, you started to see justices mention things in public speeches about the fact that we are considering a code of conduct. Kagan said something or Sotomayor said something about it would be good and I suspect we’ll see something like that. And then I think it was like an important moment when Justice Kavanaugh said something about, I think we’ll see one soon. I think we all know, even if we can’t say it affirmatively, we know who the holdouts were. We know who the two problem figures and their names rhyme with Scholito and Braus. And when we saw when the code of conduct came out and there were some slight changes from the code of conduct that does apply to lower court judges that they were clearly things that Thomas and Alito had in order to get a unanimous agreement that this was a code of conduct being adopted by the court.

This was what they forced them to do with the lower court judges agreements. But I think it proved that there are steps that the justices can take to encourage their colleagues to take action.

Jackie Gardina:

We’re going to take a break to hear from our sponsors and when we return, we’ll ask Chris to explain why so many cases before the Supreme Court are from the Fifth Circuit

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Jackie Gardina:

Chris, I want to get into some of the details of the current Supreme Court term and according to reports, the court will have reviewed 10 cases from the Fifth Circuit Court of Appeals including high profile cases relating to the abortion pill, second Amendment, gun possession and domestic violence cases. And that is by far the most cases from any circuit court. And just to put it in context for our listeners, there are 13 circuit courts and the fifth Circuit covers three states, Texas, Louisiana, and Mississippi. In contrast, the ninth Circuit covers nine states in two territories. So in theory, just based on size, the ninth circuit should have more disputes. So what’s going on with the Fifth Circuit?

Chris Geidner:

There’s 80 problems. The fifth Circuit is so extreme that it is actually doing two things. It is forcing the Supreme Court to take cases it otherwise wouldn’t because it’s issuing rulings that are just totally outside of any rational law. The Ry Stone case is the perfect example. Like no, the Justice Department and Denko Laboratories do not want to go to the Supreme Court asking them to hear an abortion case. No think rationally that is not the world in which they want to be operating, but when the Fifth Circuit issued its role, that would’ve totally upended the way that the FDA works and drug approval works, not just Opry access the DOJ and Denko heavily supported by pharma, not to mention obviously being heavily supported by abortion rights advocates went to the Supreme Court said, you need to take this. This needs to be reversed. Yet in doing so, the Supreme Court did nothing liberal.

The Supreme Court did nothing to make the law better. They just did not implement the Fifth Circuit’s ruling, making it much more conservative. And so there’s that one aspect that they’re forcing the court to do it. But then on the other aspect, and it’s basically the other side of the same coin, they are giving the Supreme Court opportunities to take the law further, right by creating circuit conflicts where otherwise there might not be any. And so if the court wants to take a case, the Fifth Circuit will certainly give them the opportunity to do so, and sometimes they’ll give them an opportunity to do so where the Supreme Court can actually pull back a little from what the Fifth Circuit did and say, no, no, no, we’re not affirming that in full, but we are going to uphold this part and that still is moving the law further, right? And yet if there’s bad reporting of the decision, it comes off as like, well, this was a mixed win for liberals and conservatives today, and it’s like, no, it’s a conservative win.

Jackie Gardina:

I think the myth of Prestone case is a perfect example where they just denied standing. They didn’t in any way help along the validity of the FDA’s regulations or ability to engage in that.

Chris Geidner:

I’ll actually push a little back on that. I actually think that was a strong ruling. It was limited to standing. I think that even the language in the standing section was very clear that I think it makes it very difficult for the three conservative states that tried to intervene in the case, but even if you look at those states standing and you look at the standing ruling in the Mifa PRI Stone case, the states don’t have a good case for standing when you get a nine oh ruling from this court, they’re saying, we don’t want to deal with this Mipr stone argument.

Jackie Gardina:

I want to circle back to the Fifth Circuit and their gravitational pool towards the Supreme Court. You identified a couple of reasons why, but one thing you didn’t mention, and I think it will allow us to transition into some of your other reporting is you’ve got plaintiffs that are specifically choosing Texas or the Fifth Circuit in order to get rulings that are beneficial to them. So it’s also about forum shopping.

Chris Geidner:

Oh, absolutely, yes. I mean Matt Kme is a single judge division. 100% of the cases filed in his division get assigned to him. RI O’Connor I think is 75 or 85%. It’s not just that. RI O’Connor was a Trump judge before. They made Trump judges, as I’ve said, and that Kame is a strongly conservative ideological built out of the Christian, right. There are other ones. You’ve got judges who are not yet national names like Brantley Starr like Ken Starr’s nephew is a judge there, and he was the judge who had ordered Southwest Airline lawyers to attend religious liberty training that was too far awry for even the Fifth Circuit. They’re using these cases in Texas. They’ve got Judge Doty who I think gets 75% of the cases within the western district of Louisiana. He’s the judge who you might remember had the July 4th long ruling that purported to bar thousands of members of the Biden administration from even speaking with social media companies. That was a case that got peeled back a little by the Fifth Circuit, but they affirmed a lot of it and that’s now before the Supreme Court pending as Murthy versus Missouri over whether the courts can limit the Biden administration’s contact with the social media companies for certain purposes, and that is a case out of Louisiana, so it wasn’t even as forum shopped.

Jackie Gardina:

We’re going to take another quick break to hear from our sponsors and when we return, we’re going to talk about the very different reaction to form shopping in Alabama.

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Mitch Winick:

Keeping on this theme and staying in the south for a moment, I know that you’ve also written extensively about what’s going on in Alabama. This is a case dealing with the access to gender affirming healthcare for trans youth. It’s another version of forum shopping. Tell us a little about that.

Jackie Gardina:

Mitch, I’m going to be rude and I’m going to jump in with a quick summary so Chris can get into the details of the dispute around judge shopping itself rather than complexities of the case. It has a lot of procedural twists and turns in it that Chris has written about in his law Dork newsletter. In short, Alabama passed a law that banned gender of care for youth like many states had and like in other states, lawyers filed lawsuits challenging that law and in Alabama, two different sets of lawyers filed two different lawsuits on behalf of different plaintiffs and through a bizarre set of events that let’s just say are not the norms for how federal courts operate, the cases end up before Judge Lyles c Burke a judge that the plaintiffs are certain will not be friendly to their arguments, so as all good lawyers will do, they came together to strategize on how to best address this development and well, that’s where things get more bizarre. Chris, why don’t you pick up the story from there?

Chris Geidner:

Then the lawyers for the two parties have a call and they’re like, what’s going on? This is weird. The Alabama lawyers who are on these calls, they’re like, we don’t know. This is against practice in the northern district. It should be with the first file Judge, we have no idea. We’ve never seen anything like this. There’s talk on the calls about we’re worried that Judge Burke might be reaching out to hear this case because he has an interest in it and they think he’s a bad judge, and so the parties agree under rule 41 to exercise their right to dismiss the case. They agree they’re going to dismiss the case, they dismiss it. They basically have an understanding we’re going to challenge this law. We’ll file another lawsuit. Another lawsuit is filed, I think Tuesday. It is filed in the middle district. Nonetheless, the judge who gets assigned it in the middle district reassigns it transfers it up to Lyles.

Bur says, oh, he had these earlier cases even though he had cases for eight hours, and he then gets the case in granting the dismissal of one of those first two cases, which they have of right voluntary dismissal under rule 41. Burke says in his order, this obviously Vinces the possibility that this is judge shopping, and so I’m going to forward this order to the chief judges of all three courts in Alabama to let them know about this and sends it off. The chief judges appoint a three judge panel to investigate this. Then the three judges assigned embark on a year and a half investigation. It’s secret, they gag the attorneys to only talk to their counsel. They also sequester the attorneys from each other, even ones who work for the same organizations. They don’t give them basically any due process because they say this isn’t an adversarial proceeding. It’s not handled the way that any professional misconduct hearings.

Mitch Winick:

That’s part of the part that I just kind of made my hair stand on end. What you just said was such a key part of this. I couldn’t find out where they pointed to any set of rules of procedure to any kind of a process that this would be. Okay.

Chris Geidner:

They referred to the court’s inherent power to oversee happenings in its court. Wow. They continued this. They issued a final report of inquiry. This started out with 39 lawyers. It ended up with 11 who they issued findings of misconduct against. It’s remarkable to me still. They then just gave it back to Judge Burke, this judge who had issued the original concerns because of the fact that he had the current case that was ongoing challenging the ban. There’s no sensible reason why he should have gotten it back. In addition to everything else that’s just this like we’re going to give it to the guy who already basically said he thought this was forum shopping to decide what to do with this report. He then decided, and I think this is another really sketchy moment, he issued show cause orders like basically demanding all these 11 lawyers to issue a response as to why they shouldn’t have sanctions ordered against them.

Then after he issued the show cause orders, but before their responses were due, he issued an order making public the final report of inquiry. So while the lawyers had the threat of sanctions over them, so they’re obviously not going to speak out, he then put out into the world this 53 page no process improper legal standards report that makes these accusations including an accusation that one lawyer deliberately misled the panel to the public. Before I was able to read the 400 pages of responses that they filed, he issued an order that was a new show cause order to four of the lawyers saying that he was demanding that they turn over this q and a document that had been discussed and if they didn’t do so by the next Monday, they had to show up in court by Thursday to explain why they shouldn’t be put in jail. I want

Mitch Winick:

To be clear, Chris, that q and a document was clearly lawyer client communication.

Chris Geidner:

I’m truly appalled and I think it’s a failing of a lot of media publications that I’m still the only one who’s really talking about this. The fact that they had this document, they had this inquiry going on, they had all these problems, they had this gag order, they had this questions of due process that they had been raising throughout that the panel kept denying they had these Rule 41 claims that they were raising that the panel never addressed, that Burke has never addressed. They never went to the 11th circuit, they never sought mandamus, they never appealed anything. They never tried extreme actions to try to stop this, but that on that order, they did file a mandamus petition and it did its job. It did get bur to back down and he issued a stay of that show cause order. He didn’t withdraw it, but he issued a stay so that he could brief it.

When he followed up and issued an order last Friday, he still reached the same conclusion that he should be allowed to get this q and a document in a ridiculous ruling that found that the crime fraud exception applied that obviated attorney-client privilege for the document. I should be fair to Lyles Burke, I hate even saying that he did not find that the crime fraud exception applied. He found that there was a prima faic case that it would apply. That justified him being able to review the document in camera, which as you know means in chambers, but as you also know, means nothing in a case where there’s no other party. When a judge reviews something in chambers, it’s so that he or she can make a decision before they decide whether or not the opposing party can see it. Here he was seeing the document in chambers so that he could decide whether he can use the document in the show cause hearings.

Mitch Winick:

That’s been a great kind of laddering of behavior by a federal judge that those of us who know a little more about civil procedure along with you are just shocked. So this is right in Jackie’s wheelhouse because when you start talking about judicial ethics and then lawyer ethics, which is really what we were referring to in forum shopping in Texas, her hair lights up and she always wants to talk about this. So help us Jackie. How would you tie this behavior in Alabama and this behavior in Texas together? What is this telling us or what should this alarm us about?

Jackie Gardina:

I just think that there’s a huge chasm between what’s happening in Texas and what’s happening in Alabama. You’ve got an Aaron Hawley, the attorney for the plaintiffs that tried to bring the myth of Pistone case specifically went to Judge Ka Merrick’s district, incorporated a corporation there so that that corporation could actually sue in front of that judge because she knew that it would be a friendly ruling and then appeal it to the Fifth Circuit and then eventually to the Supreme Court that’s known and accepted as just good lawyering. These lawyers go to defend trans youth and their ability to get gender affirming care and they’re subject to a two year secret investigation without due process because they’re accused of judge shopping, even though that’s exactly what Erin Holly did in Texas. So it is alarming to me, and I have to agree, Chris, with you completely why we’re not talking about it more

Chris Geidner:

And this entire investigation is really attacking all three of those plaintiff’s rights to have litigation handled as they desire it. No, plaintiff brought a professional misconduct complaint. The state of Alabama didn’t do so. The ags office didn’t do so. No legislator did. So this was Holy Lyles Burke being mad that he did not have the case in front of him.

Mitch Winick:

So Chris, one of the things that you wrote about was back in March, the US Judicial Conference actually announced some new policies that would eliminate or at least severely limit some of these types of practices, but then totally back down the minute that Senate Republicans and certain high profile conservative judges just literally threw a fit. So they then took this thoughtful discussion about how to improve the ethics and behavior in front of the federal judiciary and then made it discretionary. Well, that sounds very similar to what the Supreme Court did with its own ethical rules, pretty much making them discretionary. What do you think about the impact of these types of really failures to even publicly structure or regulate some transparent ethical rules?

Chris Geidner:

The Northern District of Texas sent a letter and said, we voted no.

Mitch Winick:

They just said no. They said thank you, but no,

Chris Geidner:

It undermines faith in the judiciary. It undermines faith in the legal system. It undermines a belief that going to court is going to result in any sort of objective judging if you need to bring your case in front of Matt Kes Merrick in order to get the ruling you want.

Mitch Winick:

It’s one thing when you’re in law school and you hear a lot about the idiosyncrasies of state judiciary. I grew up in Texas and those are elected judges in Texas, and so you do get this very broad diversity of opinions, but we always thought of the federal judiciary, the judges you’re talking about right now as the gold standard. They didn’t play these kind of games. The system was more structured. It was far more formal, but that is not what we’re seeing in at least these two federal districts.

Chris Geidner:

They’re not alone. Like I said, you’ve got Terry Doty in the Western District of Louisiana. We’ve all been subject to Eileen Cannon. You’ve got Catherine Mazel

Mitch Winick:

In Florida, just for those who don’t know,

Chris Geidner:

She’s got the Marlo case. You’ve got Catherine Mazel who judge Catherine Maze also in Florida. She was the youngest Trump appointees. She was 33 when she was appointed to a lifetime appointment on the federal bench. She was one of the early lower court rulings that struck down a covid mandate.

Jackie Gardina:

I think it was the mask mandate. Throughout this entire conversation, I’ve been struck by how many decisions start with the judge being appointed by then President Trump. We always try to end each episode with a look to the future and one very major issue related to the Supreme Court is looming on the horizon. The November 20, 24 presidential election is likely to influence two relatively near term new appointments to the US Supreme Court as well as hundreds of lower federal court appointments, all lifetime appointments. Do you think the public is focused enough and truly understands the impact that this aspect of the election has?

Chris Geidner:

I think that John Roberts is doing everything he can to make sure it’s not, we don’t yet know if he’s going to be able to succeed. I think that the outcome in the Trump immunity case n action by the Supreme Court is already done. The harm has already been caused by them. They should have granted cert before judgment back in December, or at least they should have actually expeditiously heard the case after the DC Circuit ruled. They’ve done neither and now they are holding it to almost two months after they heard arguments, whereas they were able to get the 14th amendment decision when Trump needed it out in a month. People are paying attention to what the courts did in ops. That might have been one ruling, but it was one ruling that made a big, big difference.

Mitch Winick:

Chris, as we expected, you have left us with so many things to ask ourselves as questions more than answers, and let me thank you for the hard work you do in documenting all of these issues, in discussing them openly, in bringing transparency to these issues because I think Jackie would agree with me. There is just not enough of that in the mainstream press. Your law Dork Newsletter does a great job of bringing that to light, making us think about it and giving us resources to look at. So thank you for doing that.

Chris Geidner:

Thank you so much. I appreciate it. Thanks for having me.

Jackie Gardina:

Thank you so much, Chris.

There’s so much that Chris does in law Dork in terms of the depth and really breadth of his reporting, but when I started reading the cases out of Alabama and the idea that these lawyers were being sanctioned for, allegedly trying to find a judge that best served their clients, now there’s lots of questions about whether or not that’s what was actually happening. That’s what they’re being accused of. When we know, as a matter of course, that lawyers often look for the place that they believe their clients are going to do best and the judge that they might do well in front of. For a lot of federal courts, it doesn’t matter. You file in the federal court, it’s randomly assigned to a judge because there’s multiple judges in that district. But in a couple of districts in the United States, there’s one judge, and if you file there, you’re going to end up in front of that judge, and there are lawyers who specifically make decisions to file in that one district like what Judge Kme in Texas because they know they’re guaranteed a certain outcome. Yet we have lawyers in Alabama that are being threatened with jail for trying to allegedly do the same thing, and it just leaves me struggling with the bigger ethical questions around our judiciary right now

Mitch Winick:

And to make sure everybody understands Jackie, we’re talking specifically about the federal courts. The idea is that there ought to be the same rules across the country on how you bring your cases into federal court, under federal law, under the US Constitution, and there’s a similar access to the courts, a similar process for the cases to be heard, appealed and then brought to the US Supreme Court if that’s the pathway, what we’ve heard today is that it’s far from that being the process. You get very disparate results whether you’re bringing that case in Amarillo, Texas where there’s one specific right wing conservative judge who has a long history of how he will rule on cases, so that just what you said, you know where he’s going to go with this case, all you have to do is bring it before him and then the exact same scenario or similar scenario in Alabama, and you have no oversight to keep a judge from attempting to sanction lawyers for applying the same exact type of rules. I find this very troubling and it brings us to the last point, which is the point you made early in our conversation. These are lifetime appointments and the only control we as the general population have to impact who we want to have as federal judges is in November when we elect a president who will be nominating these judges with the advice and consent of the Senate.

Jackie Gardina:

It puts a spotlight like everything does this year directly on the elections, and we’ll have to see if Chris is right and whether or not Chief Justice Roberts is able to thread the needle and emerge with Supreme Court decisions that don’t alarm the public so much that it increases turnout on one side or the other, but I don’t think he’s going to be successful. We should know in a couple of weeks.

Mitch Winick:

Well, we will, and I want to back to our conversation with Nina Totenberg where she talked about the lack of a center. Dalia Litwick talked about the lack of a center at the Supreme Court. Was it Nina or Dalia who basically said he doesn’t have the votes, so he doesn’t have the control. I think we’ve got a lot to look forward to and a lot to watch out, and a lot for everybody to think about as we’re getting closer to these November 20, 24 elections.

Jackie Gardina:

Once again, I want to thank everyone who joined us today on SideBar, and as always, Mitch and I would love to know what’s on your mind. You can reach us at SideBar media.org.

Mitch Winick:

SideBar would not be possible without our producer, David Eakin, who composes and plays all of the music you hear on SideBar. Thank you also to Dina Dowsett who creates and coordinates sidebars. Social media marketing.

Jackie Gardina:

Colleges of law and Monterey College of Law are part of a larger organization called California Accredited Law Schools. All of our schools are dedicated to providing access and opportunity to legal education to marginalized communities.

Mitch Winick:

For more information about the California accredited Law schools, go to ca law schools.org. That’s ca law schools.org.

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