The Volokh Conspiracy

I am pleased to pass on these remarks from Judge Reed O'Connor (NDTX). Yesterday, he opened the Federalist Society's 2024 Texas Chapters Conference in Fort Worth. Judge O'Connor addressed the topic of forum selection and "judge shopping," as well as and recent proposals from the Judicial Conference.

Welcome to the Fort Worth Division of the Northern District of Texas. Fort Worth is honored that the Federalist Society chose to hold its annual Texas Conference here.

I am confident you will find that Fort Worth is a very welcoming city. And, no, I don't mean for judge-shopping, as some like to think. I mean Fort Worth truly has a welcoming spirit.

For those who have seen the movie 12 Mighty Orphans, that orphanage was located in southeast Fort Worth. The book the movie was based on described "Fort Worth . . .  as one of the friendliest places to downtrodden children in the hardest years of the Depression." That welcoming spirit remains just as strong today.

There is a lot of resilient history in this corner of Texas. Fort Worth was established in 1849 as an army outpost on a bluff overlooking the Trinity River. It has come a long way since then as it is now the 11th largest city in the United States—having just passed Austin—and was one of the fastest growing cities in the country last year.

Despite its size, Fort Worth resiliently maintains its small-town charm and original western heritage, as you can see in its historic Stockyards entertainment district and the Sid Richardson Museum in Sundance Square.

At the same time, Fort Worth also features first class cultural experiences in its incredible museums that boast works of art from the Renaissance to the 21st Century, including Michelangelo's very first painting, which hangs in the Kimbell Art Museum. That cultural experience also includes the world class Bass Performance Hall.

Situated in the heart of Fort Worth is the federal courthouse—a beautiful Depression-era WPA construction project that has been the venue for many historic cases.

In the exact courtroom in which I preside, former Texas Governor Coke Stevenson sued then-Congressman Lyndon B. Johnson over the primary results for the 1948 Democratic Senate primary. This decision was ultimately appealed to the U.S. Supreme Court where Justice Black ruled in Johnson's favor. And the rest is history, as Senator Johnson became Majority Leader, Vice President, and then President.

In the same courtroom, Judge David Belew, a World War 2 soldier who stormed the beaches of France and was shot on D-Day, presided over the longest aviation trial in U.S. history—spanning 14 months.

And in this courtroom Judge Terry Means handed down the first federal death sentence in the nation after its reinstatement as a punishment under the 1994 Federal Death Penalty Act.

These kinds of high-profile cases continue to be filed in this Division. Some of those cases impact the topics that will be debated today. Nothing too controversial, mind you—things like the line between governmental power and parental rights, First Amendment cases, and cases highlighting the tension between federal power and the power of border states.

Of course, decisions in cases like these often result in outside efforts to undermine public support for the judiciary from a host of commentators, so-called watchdogs, and even elected officials. But by design, federal judges were given life tenure so that the passions of the public would not influence them. It doesn't mean judges are immune from criticism. In fact, don't become a judge if you are uncomfortable with criticism.

But sometimes these decisions lead to threats and intimidation tactics directed at the presiding judges, or other acts designed to undermine the legitimacy of judges. We will hear from distinguished panelists today who will discuss the difference between legitimate criticism versus efforts to undermine the judiciary, along with the duty placed on those in the legal profession to defend the judiciary, and why that is important.

This discussion is critically important when these external efforts to undermine judges spark internal pressure within the judiciary. Just this year, in response to political pressure that named specific judges, the Judicial Conference took aim at single-judge divisions, especially those in Texas. Appearing to cave to criticism from commentators and political officials, this Judicial Conference proposal rejects the idea that there are no partisan judges—only judges doing their level best to faithfully apply the law to reach the correct decision.

Notably, the proposal did not target longstanding forum-shopping—or as Judge Jim Ho put it, forum-selling—in bankruptcy courts or patent venues. Such cases impact our economy in the billions of dollars and were recently highlighted only due to an embarrassing scandal. Yet the practice in these areas remain untouched by reform efforts given the absence of comparable political pressure from commentators and political officials.

Instead, the proposal focused entirely on remedies the Department of Justice, the world's largest law firm and regular forum shopper, complained of—that is, injunctions and vacaturs. The reason for this was clear: the Judicial Conference was responding to external political criticism.

Thankfully, judges and members of our profession pushed back, ensuring that heavier access-to-justice burdens aren't imposed on citizens in our district based solely on where they live. But this pressure remains a constant and will not ease up anytime soon. Indeed, it appears that the Judicial Conference Rules Committee intends to adopt a procedure mandating the case assignment guidance.

During such times, we are especially fortunate to be part of organizations like the Federalist Society, whose main purpose is to sponsor fair, serious, and open debate about protecting constitutional freedoms and the role of the courts in saying what the law is rather than what they wish it to be. I think you will all agree that this purpose will be fulfilled by the great program today.

In our current climate of efforts to undermine the judiciary, and when law schools and law professors across the country increasingly teach students to presume malicious intention on the part of judges with whom they disagree, there is no place more resilient to host critical conversations about the judiciary than at this conference, in this circuit, and in this division.

Thank you all for being here in our great city, and for your continued commitment to the judicial system and to the people of the United States of America.

Welcome to Fort Worth!

[I have updated and basically rewritten the post in light of new information that allows me to explain matters much more clearly, I think.]

This year's entering class is the first since admissions decisions were constrained by the Supreme Court's ban on racial preferences in the SFFA case, and lots of interesting data have been coming out. Some elite universities like Yale, despite swearing in an amicus brief that there was no way to retain racial diversity without using preferences, have seen their "underrepresented minority" demographics barely change. Others, like MIT and Johns Hopkins, have seen their Asian American populations increase with a concomitant decrease in Hispanic and Black matriculants and little change in the percentage of white students.

For those interested in how SFFA has changed college admissions stats, one pitfall to watch out for is that universities do not always report the data consistently. One way to report the data, preferred/required by the government, is to assign each student only one racial or ethnic (Hispanic) classification, regardless of how many boxes the student checked. My understanding is that if a student checks white and Hispanic (an ethnic classification), he is reported as Hispanic. If he checks two racial classifications, he is reported under a "multiracial" category. The total should add up to 100%, give or take a minor rounding up or down.

The other way to report the data is to count every student by every box they check. Thus, a student who checks both white and black will be reported in both the white and black percentages, instead of in the multiracial classification. In this context, someone with, say, Native American, black, Hispanic, and white ancestry would "count" for all four categories. As a result, the percentages will add up to over 100%.

Some universities that previously reported their data to the public (as in press releases and admissions material) the first way, one classification per student, are now reporting it the second way. So, for example, a school that reported 10% black students last year and reports 10% again, may in fact have, say, only 7% if they had reported the data the same way, along with 3% of students who previously would have been reported as multiracial rather than black.

Johns Hopkins seems to be one of the few institutions that have posted the demographic data in both formats for both 2023 and 2024. As you can see below, how a university reports the data can make a significant difference in the relevant percentages, but the basic story is the same either way: Hispanic and Black matriculants fell sharply, white matriculants were pretty steady, and Asian American matriculants rose sharply. And kudos to Hopkins for transparency.