The Volokh Conspiracy

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A Reply From Judge David Ezra


Last month, I wrote a post titled "Austin Judges Shop For Cases With "Mutual Consent." I discussed at some length Judge David Ezra of the U.S. District Court for the District of Hawaii, who hears cases in the U.S. District Court for the Western District of Texas by "mutual consent."

I wrote:

It is well known in Texas that Judge Ezra fancies the high-profile cases, and consistently receives them. By my count, in the past year, he has presided over the buoys case, the S.B. 4 case, and the porn age verification case. All three of these cases have already been on, or will soon be, on the Supreme Court's docket. Most federal district court judges can go their entire careers without having a single case make it to the Supreme Court. But Ezra has three in a year. Is this a coincidence? No. Ezra could only have received these cases by his "mutual consent." Judge Pitman offered these cases to him, and he accepted them.

Mind you that Judge Ezra is actually a visiting judge from the District of Hawaii, or what Attorney General Sessions called a "judge sitting on an island in the Pacific." To the extent that Ezra was approved to sit in the Western District of Texas, it was to help with some dockets that are backlogged, such as immigration cases or criminal sentencing.

I received an email out of the blue from Judge Ezra. He wrote:

First, while technically correct that there are three Senior Judges in Austin, in practice Judge Sparks is currently on inactive Senior Status and Judge Nowlin has a very reduced case load. So in reality the bulk of the Austin docket is currently being handled by Judge Pitman and myself. You were correct that Judge Pitman controls the Austin docket, however, when he is unavailable or recused those cases are assigned to me in most instances. That was how the Buoy case and SB 4 case came to my docket. I did not seek out those cases. Judge Pitman will tell you that I have never asked for any particular case be assigned to my docket and the same is true for my San Antonio docket.

As for my sitting in the Western District I was not brought on board in 2013 to take any particular case or class of cases, including immigration cases. The border federal courts were and remain inundated and it was determined that I could be of most help working on civil cases, many of which are long and complex. This is particularly true in the Austin Division. This frees up Judge Pitman to work not only on civil cases but the time sensitive criminal docket. The situation in Austin became acute when the other active Judge in Austin Lee Yeakel retired into private practice last year.

Finally, I can assure you that anyone who actually knows Judge Pitman or any of the other judges in the Western District who are in a position to assign me cases will tell you I don't look for "big" cases. Judge Pitman assigns me cases in blocks and I don't even know the names of the cases until they are transferred to my docket. I also don't run away from a case because it may be difficult. By the way, since you mentioned that Chief Judge Moses was appointed by President Bush you must also know that I was appointed by President Reagan, not that either of those facts are in any way important to how we rule.

I asked Judge Ezra if I could quote his reply on the blog, and he replied:

…. [G]enerally when a federal judge corresponds privately with a law professor it is understood to be private. That is so they may have an open and full conversation without the judge feeling constrained by the concern his or her comments will be made public. That said, in this case I really have no concern about you quoting from my email.  Everything I said there is absolutely true and does not intrude in anyway I can see into politics.

I do have a response to Judge Ezra, based on some remarks he gave at a recent meeting of the Federal Bar Association in Austin, but that will have to wait for another time. The Supreme Court's docket still detains me. But in the interest of completeness I wanted to share the Judge's remarks.