By Eleanor Klibanoff, The Texas Tribune
“Part 3: Under Trump, Texas’ foot soldiers became federal judges, securing a conservative stronghold in the courts” was first published by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.
For decades, an increasingly powerful movement of conservative lawyers, born from the Texas Office of the Attorney General, had been shouldering its way into the federal judiciary, filing lawsuit after lawsuit in an attempt to slowly reshape the nation’s jurisprudence to its liking.
The election of President Donald Trump swung the doors wide open and ushered them inside.
Trump entered office with more judicial vacancies than almost any president in U.S. history, and a resolute commitment to fill those openings with conservative loyalists. Texas, the workhorse of the movement, was rewarded especially richly, with more new federal district and appellate judges appointed than any other state.
Many of these new appointees shared a strikingly similar professional background.
“The number of alums from the [Texas Office of the Solicitor General] who now wear robes on a daily basis, and not just because they have curious sartorial decisions, is an amazing and impressive thing,” said Sen. Ted Cruz, a former Texas solicitor general himself, at a Federalist Society event in 2019.
The progeny of Texas’ conservative legal revolution no longer just bring their legal theories before the federal bench. Now they’re sitting on it, ready to decide cases built on the same legal arguments they helped shape over the last two decades.
“They’re young, they’re smart, they’re principled, they’re constitutionalists,” Cruz said. “That is an incredible legacy, and it’s a legacy Texas is going to be benefitting from 10 years, 20 years, 30 years, 40 years from now.”
Transforming the district courts
When President Barack Obama left office, about half of Texas’ 52 federal judgeships were filled by Republican appointees, about a third were Democratic appointees and a full 20% were vacant, having languished under a Democratic president who didn’t prioritize judicial nominees and two Republican Texas senators who did.
After Trump was elected, those roadblocks swiftly resolved. Politically aligned with the president, Cruz and Sen. John Cornyn basically had free rein to nominate district judges. In 2013, Democrats eliminated the 60-vote requirement for judicial appointments, so with a Republican majority in the Senate, Cruz and Cornyn didn’t have to worry too much about finding consensus picks.
After years of helping Texas bring conservative causes to the courts, the senators had an opportunity to influence who would hear those cases going forward. And they took it, nominating a class of young, conservative judges, many of whom had helped build the litigation machine at the Texas attorney general’s office.
Brantley Starr, who worked under Cruz in the solicitor general’s office and “side by side” with Texas Attorney General Ken Paxton, was appointed as a district judge in Dallas. David Morales, one of Abbott’s top deputies at the attorney general’s office and former general counsel to Gov. Rick Perry, was appointed in Corpus Christi.
Former Deputy Solicitor General Sean Jordan was appointed in Plano, and then attended the swearing-in for J. Campbell Barker, who joined the bench in Tyler.
“We both held the same position in the solicitor general’s office,” Jordan said at the ceremony. He joked, “That means we have a secret handshake. We have special code words that we use and, of course, our matching tattoos.”
When Senate Republicans vetted judicial nominees, experience at the Texas attorney general’s office was a green flag, said Mike Davis, former chief counsel for nominations to Senate Judiciary Chair Chuck Grassley, an Iowa Republican.
“It’s seen as very conservative,” Davis said. “They have very, very prestigious attorneys working in the Texas AG’s office. … They’ve been able to recruit top talent from around the country.”
The nominees from that office fit the party’s ideal of “young, constitutionalist judges who had courage,” Davis said.
Texas’ nominees, whether they worked in the AG’s office or not, tended to come from the same mold: Active in the Federalist Society, avowed conservatives and strong on religious liberty. In a move that would have been doomed in nomination seasons past, Cruz and Cornyn put forward two candidates from First Liberty, a Plano law firm that has been the tip of the spear in efforts to strike down federal and state laws seen as encroaching on religious liberty.
The nomination of Jeff Mateer, who left First Liberty to work for Paxton, was scrapped after it came out that he once referred to transgender children as part of “Satan’s plan.” But deputy general counsel Matthew Kacsmaryk made it through, becoming the first federal judge appointed directly to the bench from a religious liberty firm.
And Kacmsaryk wasn’t appointed to any old seat: He secured one of the all-important single-judge divisions, in Amarillo.
In the final years of the Obama administration, Texas had begun strategically filing lawsuits in divisions where it was all but guaranteed the case would be heard by a conservative judge. At the time, there was one solid option — Judge Reed O’Connor, who heard most cases in Wichita Falls and Fort Worth.
But Trump appointed judges in seven single-judge divisions in Texas, hugely expanding the number of venues where Paxton could effectively handpick the judge who would hear a case. Since President Joe Biden took office in January 2021, Texas has targeted these divisions, especially Kacsmaryk, O’Connor and Judge Drew Tipton of Victoria.
When Paxton sued over a new asylum program for certain migrants from Cuba, Haiti, Nicaragua and Venezuela, the Department of Justice questioned why this 20-state lawsuit was filed in Tipton’s courtroom.
“The case is being filed in Victoria, quite frankly, Your Honor, because of our experience with you,” Texas Assistant Attorney General Leif Olson told the judge. “Because we know that you know these statutes. We know that you give them very close and detailed attention. And our office knows how you run a courtroom.”
It’s not just the state that’s drawn to these judges. Jonathan Mitchell, Abbott’s former solicitor general, is now a solo practitioner who has sought out friendly single-judge divisions for lawsuits advancing brazen legal arguments.
Kacmsaryk agreed with Mitchell that a long-standing federal contraception program violated the rights of Texas parents, foreclosing one of the few ways Texas teens can confidentially access birth control. O’Connor took another stab at gutting the Affordable Care Act, thanks to Mitchell’s lawsuit challenging the preventive care mandate on religious grounds. And Mitchell asked Judge Wesley Hendrix, the only active federal district judge in Lubbock, to take on affirmative action in Texas’ medical schools.
“It’s absolutely easier now than it was 20 years ago,” Mitchell told The Texas Tribune. “It’s also easier for Democratic states. They can go to the Northern District of California, where you have 22 judges appointed by Democratic presidents. They know where to go to sue over Trump policies. We know where to go to sue over a Democratic administration policy.”
When the Alliance Defending Freedom, a religious liberty law firm, wanted to challenge the Food and Drug Administration’s decades-old approval of mifepristone, a common abortion-inducing drug, it brought the case to Kacsmaryk. He agreed with the firm, his ruling embracing a dim view of the federal regulatory machinery Texas has spent years attacking in court.
“The Court does not second-guess FDA’s decision-making lightly,” Kacsmaryk wrote in the ruling. “But here, FDA acquiesced on its legitimate safety concerns — in violation of its statutory duty — based on plainly unsound reasoning and studies that did not support its conclusions.”
Changes to the Fifth Circuit
The U.S. Department of Justice immediately appealed Kacsmaryk’s mifepristone ruling. Most appeals originating in Texas, Louisiana and Mississippi go to the New Orleans-based 5th U.S. Circuit Court of Appeals, where they are heard by three-member panels drawn from 17 judges.
The 5th Circuit, already one of the most conservative appeals courts in the country, also moved dramatically to the right during the Trump administration, thanks in large part to former employees of the Texas Office of the Solicitor General.
Kyle Duncan, who helped start the Office of the Solicitor General with Cornyn in 1999, was nominated for one of the Louisiana spots, based on his work as that state’s appellate chief. Duncan also served as general counsel for the Becket Fund for Religious Liberty, where he represented Hobby Lobby in its landmark U.S. Supreme Court case challenging, on religious liberty grounds, the requirement to provide insurance coverage for contraception.
There were three spots on the 5th Circuit for Texans during the Trump presidency — two open since at least 2013 — and picking who would fill them was hotly contested. Many court-watchers assumed Cornyn would elevate his former aide, O’Connor, the reliable conservative judge in Wichita Falls. Cruz was rumored to be pushing former Texas Solicitor General James Ho.
After leaving the solicitor general’s office, Ho had returned to private practice and a side gig as one of First Liberty’s most active volunteer attorneys, including defending a group of cheerleaders who wanted to paint Bible verses on game banners.
Former Assistant Attorney General Don Willett was seen as another top contender, especially after Trump included the Texas Supreme Court justice on his short list for the U.S. Supreme Court.
In an unusual move, Abbott also waded into the mix, pushing for his general counsel and former deputy solicitor general, Andrew Oldham. Abbott, Cruz and Cornyn did not respond to requests for comment.
More potential nominees than vacancies temporarily ensnared the process. But in the end, O’Connor, the only one already on the federal bench, was left out in the cold. Ho, Willett and Oldham ascended to the appeals court on the strength of their conservative bona fides, burnished while working for the state of Texas.
In an interview with the Tribune, Ho said it made sense that former solicitors general would end up serving on the appellate bench.
“If you hire appellate specialists to represent you in appellate courts, it makes sense why that could become one of the pools from which you might draw future appellate judges,” Ho said, pointing to Supreme Court Justice Elena Kagan, who previously served as Obama’s solicitor general. “It’s no different than any other field — tax lawyers are typically hired to run the DOJ tax division, securities lawyers are appointed to the SEC and appellate lawyers are considered for seats on appellate courts.”
The new appointees shifted the balance on the court significantly. Most appeals are heard by random three-judge panels. There is now a greater chance of getting a 5th Circuit panel with two Trump appointees than two judges appointed by any Democratic president.
These judges aren’t going to rubber-stamp cases just because they come from the Texas attorney general’s office, said Josh Blackman, a law professor at South Texas College of Law Houston.
“But the sorts of judges that Trump appointed, they … share an understanding of cases the AG brought, how the separation of powers operates, how the courts should operate,” he said. “These are judges who understand these legal principles.”
The new 5th Circuit judges immediately began to deliver on the reputations that secured them their jobs, issuing more partisan, combative rulings than even the conservatives they joined on the bench. Ho has taken hard-line positions on gun rights, campaign finance and abortion. He was part of the three-judge panel that heard arguments about Mississippi’s 15-week abortion ban, and though he agreed it was unconstitutional under Roe v. Wade, he wrote a separate concurring opinion casting doubt on whether Roe was properly decided. The U.S. Supreme Court would later use the case to overturn the constitutional protection for abortion.
In a ruling denying a transgender inmate’s request to have their gender and name changed on court and prison records, Judge Kyle Duncan repeatedly misgendered the plaintiff, claiming that using the proper pronouns might “unintentionally convey [the court’s] tacit approval of the litigant’s underlying position.”
In February 2022, Oldham and Bush-appointed Judge Jennifer Walker Elrod ruled in favor of United Airlines employees who did not want to get COVID-19 vaccines on religious grounds, ordering a lower court to reconsider granting an injunction. Judge Jerry Smith, a Reagan appointee for whom Ho once clerked, issued a scathing dissent, calling the ruling an “orgy of jurisprudential violence.”
“If I ever wrote an opinion authorizing preliminary injunctive relief for plaintiffs without a cause of action, without a likelihood of success on the merits … and devoid of irreparable injury … all while inventing and distorting facts to suit my incoherent reasoning, I would hide my head in a bag,” Smith wrote.
“The Good Ship Fifth Circuit is afire,” Smith wrote in a footnote. “We need all hands on deck.”
“Our soldiers are lawyers”
During the Trump administration, while Republicans in Washington, D.C., were focused on judicial appointments, blue states stepped into Texas’ shoes as challengers-in-chief. Trump faced more than twice as many state-led lawsuits in four years as Obama did in eight. The suits followed a familiar playbook — multistate coalitions, filing in courthouses with good odds of getting an ideologically aligned judge, seeking nationwide injunctions.
Republicans, displeased to see this strategy used against them, returned to their clarion calls of “judicial activism.”
“This trend must stop. We have a government to run,” U.S. Attorney General Jeff Sessions wrote in a September 2018 memo condemning nationwide injunctions. “The Constitution does not grant to a single district judge the power to veto executive branch actions with respect to parties not before the court.”
Cruz, who set the stage for this approach in Texas, was so outraged he wrote a book, “Justice Corrupted: How the Left Weaponized Our Legal System,” to show “how power in the wrong hands can be used to strangle liberty, crush opposition, and wreck lives.”
Meanwhile, in Texas, the attorney general’s office was descending into turmoil. Paxton, long operating under the shadow of a criminal indictment, faced new accusations of improper favors for a donor. Several top deputies raised concerns, internally and with federal law enforcement; some, including Mateer, resigned, while others were fired and filed a whistleblower suit. (Paxton and the whistleblowers agreed in February to settle the case for $3.3 million, but the settlement is in limbo after the Texas Legislature declined to pay it).
Paxton also used his office to try to overturn the results of the 2020 election. Notably, the petition, which the U.S. Supreme Court rejected, was not signed by Texas Solicitor General Kyle Hawkins. A few weeks later, Hawkins resigned and was replaced by Cruz’s former chief counsel, Judd Stone.
The Texas attorney general’s office had long attracted attorneys looking to litigate at the leading edge of conservatism. But this latest round of controversy and turnover left the office’s top ranks staffed by harder-line ideologues than ever before. A spokesperson for the Office of the Attorney General did not respond to request for comment.
At the dawn of the Biden administration, the Texas Office of the Attorney General considered itself to be at war with “the forces that want to destroy the American order, root and branch,” as Aaron Reitz, deputy attorney general for legal strategy, said in November 2021.
“If you don’t believe that we’re at war, then I think, you know, you need to wake up to that reality,” Reitz said on “Moment of Truth,” a conservative podcast. “Here at the Texas attorney general’s office … our soldiers are lawyers, and our weapons are lawsuits, and our tactic is lawfare. This is the project that we’re engaged in.”
On the podcast, Reitz explained how Texas kept “winning and winning and winning and winning” in court, as Reitz put it. Every time a new Biden policy came down, Texas immediately filed a “minimally viable” lawsuit to challenge it, prioritizing speed over all else.
“You can amend it and make it more perfect later,” Reitz said. “But you can’t let the perfect be the enemy of the good when it comes to the speed here.”
Texas was “running the same play in each of these cases every single time,” Reitz said. “The Biden administration is messing around with detention standards, or public health regulations, or migrant protection protocols. … Once you get through that facts section, the legal arguments sections are literally the same every single time.”
Over the course of these suits, Texas tested out the new judges. Last year, Barker, Paxton’s former deputy solicitor general, rejected Texas’ challenge to the federal vaccine mandate for National Guard members. Texas hasn’t returned to Barker’s courtroom since.
But in that case, as in most where Texas nets an unfavorable ruling, the state appealed to the 5th Circuit. A three-judge panel, including Oldham and Willett, sided with Texas.
Even if Texas draws a “bad” three-judge panel at the 5th Circuit, Reitz said, the state just requests rehearing before the whole court.
“And we win there,” he said. “We’re going to win. It’s just a matter of when.”
Reitz, who did not respond to a request for comment, recently left the Office of the Attorney General to become Cruz’s chief of staff, not long before a new earthquake rocked the office. In late May, the Texas House of Representatives voted to impeach Paxton over corruption allegations. He is suspended awaiting a September trial where the Senate will decide whether to remove him from office.
A handful of top agency employees, including Stone, took leaves of absence to defend Paxton. His defense has so far focused less on disputing the corruption claims against him and more on his record of relentlessly suing Democratic administrations on Texas’ behalf.
“By attacking the Office of the Attorney General, corrupted politicians in the Texas House, led by liberal Speaker Dade Phelan, are actively destroying Texas’ position as the most powerful backstop against the Biden agenda in the entire country,” Paxton said in a statement.
But with a well-established playbook to bring cases and conservative judges in place to hear them, the machine seems to be humming along just fine in Paxton’s absence. In less than six weeks on the job, interim attorney general John Scott filed legal challenges against new federal smog regulations and protections for transgender student athletes. He was recently replaced by Abbott’s former principal deputy general counsel, Angela Colmenero.
“It was a well-oiled machine when Paxton took over, and he used it quite effectively,” Blackman said. “But it’s less about the personnel operating it at this point.”
But while Texas’ litigation machine has been churning cases through the district and appellate courts, it has hit bumpier terrain at the highest level of the judicial system.
In a recent 8-1 ruling about Biden’s reprioritization of deportations, the Supreme Court seemed horrified by what Texas, Tipton and the 5th Circuit had wrought.
Trump-appointed Justice Brett Kavanaugh found Texas did not have standing, meaning the state had not sufficiently proven how Biden’s new immigration policies might harm Texas, and thus never should have been allowed to bring this “extraordinarily unusual lawsuit.”
“Standing doctrine helps safeguard the Judiciary’s proper—and properly limited—role in our constitutional system,” Kavanaugh wrote. Citing an earlier court opinion, he noted that by ensuring a plaintiff’s standing to sue “federal courts prevent the judicial process from being used to usurp the powers of the political branches.”
Justice Neil Gorsuch, along with fellow conservative Justices Clarence Thomas and Amy Coney Barrett, concurred on different grounds, saying Texas brought claims the court could not address.
“The States urge us to look past these problems, but I do not see how we might,” Gorsuch wrote. “The Constitution affords federal courts considerable power, but it does not establish ‘government by lawsuit.’”
If the justices expected their fellow conservative legal warriors to be shamed by the specter of judicial activism, they don’t know Texas.
“Texas has played a key role in forcing accountability through the court system,” the attorney general’s office said in a statement after the ruling. “Our office will continue to advocate for the rights of our citizens and uphold the Constitution against Biden’s open borders onslaught.”
In the meantime, Texas managed to delay Biden’s immigration priorities for almost two and a half years. Many of the lawsuits Texas is filing right now won’t end up before the high court at all, and those that do will take years to resolve.
By that time, Texas is gambling, there might be a new president in the White House, ready to change course on Biden’s policies and continue the project of filling the federal courts with friendly faces. All four of the new 5th Circuit judges with Texas ties have been bandied about as potential Supreme Court nominees if a Republican president is elected.
Twenty years ago, when they felt the judiciary was tilted against them, conservatives railed against activism from the bench. Now, with the superhighway from the Texas Office of the Attorney General straight to the high court almost fully constructed, they’re enjoying the spoils of a judiciary increasingly stacked in their favor.
The system is in place for Texas to use the courts to “go after the enemy that hates this country,” as Reitz put it — “to save America, to save Texas and to preserve these conservative values that we believe in.”
Roxanna Asgarian contributed reporting for this series.
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This article originally appeared in The Texas Tribune at https://www.texastribune.org/2023/07/31/texas-federal-courts-conservative-takeover-trump/.
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