By Joshua Arnold
The Washington Stand
An attorney for the Southern Poverty Law Center (SPLC) and 10 other left-wing lawyers were found to have engaged in improper “judge shopping,” according to a panel of federal judges, whose October 2023 report was unsealed last week.
The lawyers were challenging an Alabama law protecting minors from gender transition procedures and tried to maneuver their lawsuit in front of the most favorable judge. Judge Liles Burke, who presided over their 2022 challenge to the Alabama Vulnerable Child and Adolescent Protection (VCAP) Act, ordered the lawyers on February 21 to “show cause why they should not be sanctioned for the misconduct outlined in the Final Report of Inquiry” in a hearing set for May 22 and 23.
A three-judge panel, comprised of a judge from each of Alabama’s federal district courts, found “without hesitation” that these 11 lawyers “purposefully attempted to circumvent the random case assignment procedures of the United States District Courts,” “to direct their cases to a judge they considered favorable, and, in particular, to avoid Judge Burke.”
The panel enumerated 10 concrete examples of misconduct. Briefly, the lawyers brought two challenges against Alabama’s VCAP law, one (Walker v. Marshall) in the Middle District of Alabama and another (Ladinsky v. Ivey) in the Northern District of Alabama. They tried, officially and unofficially, to maneuver the Walker case to the docket of Judge Myron Thompson, a Carter appointee “well known for ruling in favor of progressive litigants,” as Eugene Volokh described. However, when the cases were consolidated in the Northern District and assigned to Judge Liles Burke, a Trump appointee, they voluntarily dismissed both cases and told the media they planned to refile — despite telling the court they wanted to resolve the suit as quickly as possible. They then filed a third lawsuit (Eknes-Tucker v. Marshall) in the Middle District of Alabama, which was almost identical to the previous lawsuit, except that they had changed the plaintiffs to avoid the appearance of judge shopping.
However, these lawyers had already raised the court’s suspicion by voluntarily dropping the cases and telling the media they planned to refile it. Judge Burke responded by recommending a panel investigation, as their actions “could give the appearance of judge shopping — ‘a particularly pernicious form of forum shopping’ — a practice that has the propensity to create the appearance of impropriety in the judicial system.”
With three different cases to sort through, involving no less than 39 different lawyers, the three-judge panel took 18 months to complete its investigation, but they eventually determined that 11 of those 39 lawyers had engaged in misconduct. Six of these 11 lawyers represented nationwide activist groups.
Among the number was Scott McCoy, a deputy legal director for SPLC. McCoy’s previous work includes convincing a New Jersey jury that non-LGBT-affirming counseling was “consumer fraud,” running a campaign against a marriage ballot measure in Utah, and sitting as the first openly gay-identifying member of the Utah legislature.
Not among the number — indeed, not even named in the judge’s report — was McCoy’s boss, Nancy Abudu. Abudu then worked as director of strategic litigation for the SPLC, and President Biden appointed her to the Court of Appeals for the Eleventh Circuit. However, Abudu’s nomination lingered before the Senate for nearly a year. Republicans on the Senate Judiciary Committee opposed Abudu’s nomination, noting that, “in her hearing before the Committee, she did not deny overseeing the litigation strategy in the Ladinsky case.” The full investigation found that SPLC lawyers overseen by Abudu were, in fact, complicit in that debacle.
It should go without saying that the SPLC is a left-wing fringe group notorious for listing mainstream conservative organizations, such as Family Research Council and Alliance Defending Freedom, on its “hate map.” The SPLC hate map even inspired a 2012 shooting at FRC’s headquarters in Washington, D.C. One SPLC attorney was arrested on domestic terrorism charges during a March 2023 assault on the construction site for an Atlanta police training facility. Another SPLC attorney likely travelled to Washington, D.C. to participate in a pro-Palestine rally that crossed into illegal trespass when demonstrators moved their protest inside a congressional office building. The SPLC’s status as a fringe activist group is only reinforced by this new revelation that one of their lawyers was caught in an attempt to manipulate the federal judicial system for a desired outcome.
The other lawyers in hot water include:
- Carl Charles (a trans-identifying biological female), then with the trans-activist group Lambda Legal, but now with the U.S. Department of Justice;
- Asaf Orr, then with the National Center for Lesbian Rights, but now with the Legal Division for the California Civil Rights Department;
- Jennifer Levi (a trans-identifying biological female), senior director of transgender and queer rights for GLBTQ Legal Advocates & Defenders (GLAD) and a member of the Legal Committee of the World Professional Association for Transgender Health (WPATH);
- James Esseks, a longtime lawyer with the American Civil Liberties Union (ACLU), who provided counsel on Bostock v. Clayton County, Obergefell v. Hodges, United States v. Windsor, Grimm v. Gloucester County School Board, and Masterpiece Cakeshop v. Colorado Civil Rights Commission; and,
- Shannon Minter (a trans-identifying biological female), legal director at National Center for Lesbian Rights since 2001.
The panel’s report particularly excoriated Charles for deliberately misleading testimony. Charles had called Judge Thompson’s chambers, despite having no business before him, in hopes of getting the Walker case transferred to his docket. Yet when questioned about the call, Charles “unequivocally and repeatedly testified that he did not call judge’s chambers,” while claiming that he was “endeavoring to be as candid as possible.” He only changed his story “after the Panel read his cell phone number to him.” Charles’s “continued employment at DOJ ought now to be in serious jeopardy,” remarked legal commentator Ed Whelan. “It’s easy to see why plaintiffs’ lawyers were so eager to block disclosure of the report.”
Federal courts have statutory power “to punish by fine or imprisonment” any “misbehavior of any of its officers in their official transactions.”
More fundamentally, “courts have inherent authority to address lawyer conduct that abuses the judicial process,” the panel noted. Citing the Eleventh Circuit’s controlling precedent, they added, “Every court considering attempts to manipulate the random assignment of judges has considered it to constitute a disruption of the orderly administration of justice.” That disruption of the orderly administration of justice can carry with it sanctions ranging from fines to a suspension from practicing law in the Northern and Middle Districts of Alabama.
According to one pro-LGBT news outlet, the “impacted attorneys claim they are being targeted with regressive and harsh tactics that recall those used against Black civil rights litigators battling racist laws in the 1950s and 60s.” This line of argument is about as relevant as criticizing the panel’s investigative report for its font. The simple facts are: the left-wing coalition challenging Alabama’s law engaged in a form of judge shopping to blatant and egregious to be overlooked. “If ADF did something like this, they would be crucified,” Volokh protested.
“The Panel is not naïve,” the 53-page report concluded. “Lawyers sometimes consider potential judicial assignments in determining where to file a case, and there may be reasons why in certain cases some judges may be considered more favorable draws than others. So, the Panel does not condemn the lawyers for fretting about their chances of success before a particular judge.”
“But in this case,” they added, “counsel did more than fret. They made plans and took steps in an attempt to manipulate the assignment of these cases.” A footnote added, “It is one thing for attorneys to fret about potential judicial assignments before the ball is snapped (i.e., before a case is assigned). It is another to try to change the play after the case has been assigned.”
There are three ironies in this whole affair. First, it came just before a left-leaning court body, the Committee on Court Administration and Case Management of the Judicial Conference of the United States, tried to trip up conservative court victories in conservative-leaning venues by changing case assignment rules (it clarified the rules were mere recommendations after widespread pushback). The ostensible reason was to prevent “judge shopping” in single-judge divisions, such as the Amarillo Division of the Northern District of Texas. (The Left uses this form of forum shopping, too, such as when a Hawaii judge struck down Trump’s policies for the border with Mexico). But, when presented with a blatant example of “actual judge shopping” in Alabama, Volokh wondered, will this same organization object?
The panel report itself noted the second irony, namely, “that counsel ultimately succeeded before Judge Burke.” The left-wing lawyers tried so hard to have Judge Thompson try the case, instead of Judge Burke, that they put themselves in serious trouble. Then Judge Burke ruled in their favor anyway, issuing a preliminary injunction against parts of Alabama’s VCAP law.
The third irony is that the district court’s decision won’t actually matter in the long run, as the Eleventh Circuit vacated the preliminary injunction on appeal. The Eleventh Circuit’s opinion drew heavily from the more conservative Sixth Circuit’s decision upholding SAFE Acts in Tennessee and Kentucky, which resoundingly rejected the Left’s constitutional arguments against protecting children from gender transition procedures. When the district court rules on a more permanent basis, that Eleventh Circuit opinion rejecting the Left’s arguments have now become controlling precedent for the district court — regardless of which judge is sitting on the bench.
The moral of the story: Even lawyers should think of the long-term ramifications of their actions. Don’t sacrifice your credibility or license to practice for the sake of a short-term win. More than that, lawyers should avoid ethical breaches altogether and observe proper judicial procedure — even if it might mean losing the case.
Originally published at The Washington Stand!
Joshua Arnold is a senior writer at The Washington Stand.
