Thor Benson

How Democrats could push back against GOP 'judge shopping'

U.S. District Judge Matthew J. Kacsmaryk of Texas isn’t a household name, but he’s ended up ruling on important legal cases that affect the whole nation.

And that's not by accident.

The reason he’s been the judge presiding over numerous important federal cases is because he’s the focus of what is called “judge shopping.”

Judge shopping — different from “forum shopping,” which is when a lawyer is trying to get a case heard in a jurisdiction where they think they might get a favorable result — is the act of filing lawsuits in typically smaller geographic areas led by particular judges in hopes of getting a favorable result.

This seemingly happened with Kacsmaryk in the mifepristone abortion pill case, where he last month ordered a hold on federal approval of the drug. Judge shopping also was arguably performed by former President Donald Trump in the classified documents case where Trump was trying to delay the legal proceedings as the Justice Department investigated him taking classified documents to Mar-a-Lago, his post-presidential home in Florida.

Kacsmaryk, widely regarded as a conservative ideologue, became a federal judge in 2019 after then-President Trump nominated him in 2017.

Judge shopping is quite easy to do with Kacsmaryk because the vast majority of cases filed in his Northern District of Texas subdivision in Amarillo go to him.

“The Judge Kacsmaryk case is interesting because you’re basically assured you’ll get him,” says Jessica Levinson, a professor of law at Loyola Marymount University.

U.S. District Judge Aileen Cannon in Florida, a Trump nominee who last year made a favorable — and controversial — ruling that favored Trump, is another prime example, Levinson said.

Kacsmaryk’s office did not reply to a request for comment.

Plaintiffs can’t just file with Kacsmaryk because they want to. They must have a reason to be filing with him, such as they live in Texas or are an organization that operates in Texas. In the mifepristone case, some argue that the plaintiff, The Alliance for Hippocratic Medicine, made sure they had the ability to file with Kacsmaryk specifically by incorporating within his subdistrict only months before the lawsuit was filed.

“You see an advocacy organization incorporating in Texas, and I can’t imagine any other reason why they’d do that other than for the express purpose of getting in front of Judge Kacsmaryk,” says Alan Trammell, an associate professor of law at Washington and Lee University.

Potential ‘judge shopping’ pushback

Sen. Mazie Hirono (D-HI) has introduced a bill to push back against this practice of judge shopping.

The bill would make it so any civil lawsuit that would lead to what’s called a “nationwide injunction” — a ruling would affect the whole nation — would have to be heard by the U.S. District Court in Washington, D.C.

If that was what had happened in the mifepristone case, for example, then Kacsmaryk would not have ruled on the case at the federal district court level.

“Activist plaintiffs should not be able to hand-pick individual judges to set nationwide policy, which is why it’s critical we address the issue of judge shopping in our federal courts,” Hirono said in a statement.U.S. Sen. U.S. Sen. Mazie Hirono (D-HI), wearing a face mask with drawings of late Justice Ruth Bader Ginsburg. Shawn Thew-Pool/Getty Images

It’s early, but so far, however, Hirono’s bill has not yet attracted a co-sponsor or received a hearing date.

Nationwide injunctions have become more common in recent years, Levinson said, and Trump was very effective at getting ideological judges, who will issue these kinds of rulings, placed on the federal bench. Levinson says the conservative legal movement seems to see this as a time to achieve as many of its goals as it can now that there are so many judges on the federal courts that are sympathetic to those goals.

“This is the moment. If you’re a conservative, I don’t know if it’s going to get better than this,” Levinson says. “This crop of conservative justices is just so much more conservative than anything that we’ve really seen in the past 75 or 100 years.”

Trump installed so many judges that a plaintiff might not even have to work very hard to get the desired result when filing this kind of suit, Trammell says, because there are now so many “zealots” on the federal bench. He says you could get a favorable ruling with “dumb luck” because of that.

Evan Caminker, a professor of law at the University of Michigan, says he thinks Hirono’s bill would likely “minimize judge-shopping for national injunctions,” because these kinds of cases would all end up before the same district court in Washington, D.C.

That said, he can imagine conservatives might feel such a change would be too beneficial for liberals.

“I suspect some will oppose the bill simply because there happens to be a slight majority of Democratic-appointed judges in D.C. on both the trial and appellate levels, though of course that will change over time,” Caminker says.

Alternatively, Caminker says some have proposed sending these kinds of cases to a random district court. That would also be effective because the plaintiffs filing the lawsuit would have no idea where it was going to be heard.

Regardless of what happens with Hirono’s bill, it is clear the conservative legal movement has gone into hyperdrive trying to craft lawsuits and model legislation to accomplish their goals through courts.

Meanwhile, President Joe Biden’s own judicial nominees are back on track after long delays caused by the extended health-related absence of Sen. Dianne Feinstein (D-CA), whose vote was required on the Senate Judiciary Committee to advance the nominees.

Liberals consider it essential that Biden appoint as many left-leaning judges as possible between now and the 2024 election, when Democrats control both the White House and Senate.

To combat disinformation, we should treat Facebook like Big Tobacco

Political disinformation and misinformation spreading rapidly on social media sites has become a major problem over the past four years. While it affects people on both sides of the aisle, it's primarily been a force for radicalizing conservatives. From the alt-right in 2016 to QAnon in 2020, a lack of trust in our democratic institutions, Americans' lack of media literacy and the failures of the platforms themselves have caused countless conservatives around the country to adopt more extremist and conspiratorial views.

Facebook recently banned QAnon groups from its platform, but as many have noted, these kinds of bans are only so effective. Users often simply become better at camouflaging what they're doing. If we're going to seriously take on the political disinformation problem, we cannot rely on platforms like Facebook to self-police. We're going to need a solution from Washington rather than Silicon Valley.

Algorithms and consumer protection

David Carroll, an associate professor of media design at the Parsons School of Design and one of the subjects of the documentary on Cambridge Analytica called The Great Hack, tells AlterNet that we need to stop focusing so much on cleaning up disinformation and start focusing on how it's become so powerful.

"There's no strategic or systemic attempt to get at the root of the radicalizing effect of personal data feeding into algorithms, feeding into a business model and juicing engagement at all costs," Carroll says. "Facebook banning QAnon is part of its reckoning. It was a thing on the chan board fringe that was mainstreamed on Facebook through the recommendation engine—algorithms and group recommending—so I think making the companies accountable to product safety and deceptive practices is probably a better strategy."

Any solution to this problem must avoid trampling on free speech. Even when Facebook and Twitter recently took action to avoid the spread of a New York Post article on Hunter Biden's emails that contained personal email addresses and phone numbers—and which many have called Russian disinformation--Republicans claimed the platforms were censoring content to help Joe Biden win the election. There are ways we can address this issue without people worrying about tech companies intervening in the free flow of ideas.

Carroll says the goal should be keeping people from being radicalized in the first place and making sure social media companies can be held accountable when their platforms are causing harm to society. If Biden wins in November, the new administration and administration and Congress should come together and pass legislation that will force companies like Facebook to reveal to the public how their algorithms work and what personal data are being fed into them.

"Once you give people rights to their data and protection of their data, that creates the basis to then make algorithms more accountable, which then makes companies more accountable for products that they have liability for. Then they have more incentive to make them safe or take them off of the market if they're unsafe," Carroll says.

As things stand, the algorithms and recommendation engines that power social media platforms like Facebook operate in the shadows. That makes it difficult to identify exactly how Facebook's rabbit holes lead people to conspiracism and extremism. If these companies were forced to be more transparent and allow users to understand how they're being influenced, that could have a major effect on the spread of disinformation and allow us to more specifically point out ways Facebook is failing the public.

"I think it comes down to mandating explainability—meaning you have to be able to explain how the algorithm is working so that accusations of radicalization can be authoritatively sussed out, which will force companies to design the product so they can't be accused of radicalizing," Carroll says. "Right now, there's no mechanism to hold the company accountable."

Carroll believes that when people know why they're being pushed in a certain direction politically, such as why they're receiving the Facebook group recommendations they're receiving, then they'll be less likely to be sucked into a toxic spiral. Recent reporting from Britain's Channel 4 found that black voters who were shown that they were being targeted by the Trump campaign in 2016 and pushed not to vote wanted to vote even more. Even Trump supporters were disturbed by how they had been targeted.

Brooke Binkowski, former managing editor of Snopes and the current managing editor of Truth or Fiction, tells AlterNet that she would get rid of the algorithm entirely.

"That's not organic spread," she says. "They are still invisibly manipulating the conversation—or at least trying to."

Treating Facebook like Big Tobacco

Carroll says we need to start thinking about companies like Facebook the way we think about Big Tobacco, alcohol companies or car companies. He says there are limits to how those industries can market their product and what products they can sell. Car companies adhere to strict safety rules and regulations that have dramatically reduced highway fatalities and pedestrian fatalities, but those companies are still able to "innovate and thrive," he says.

"There are plenty of examples where we have succeeded at that—letting industries thrive while also regulating them for safety," Carroll says. "Algorithms are just the next frontier of that."

To take the Big Tobacco analogy further, both Carroll and Binkowski believe Facebook should be held responsible for educating the public in the way cigarette companies were forced to educate the public about the dangers of smoking after the Master Settlement Agreement.

"The ad tech industry eroded the profitability of local news, local journalism. Local newspapers have become an endangered species, which harms local communities," Carroll says. "This contributes to the decline in trust in media, so I see these as systemic problems, and systemic solutions need to be considered."

Binkowski says she thinks lawmakers should force Facebook to dedicate funding to newsrooms "in perpetuity." She says this funding should be distributed transparently and overseen by a board of journalists and academics.

"That funding program should be global, not national. They need to be compelled to return to the world what they took from it," Binkowski says. "They need to pay journalists our fair share. They sucked up all the funds from what we made, what we created, the content that we risk our lives regularly putting together, generally for a salary that would shock non-journalists if they knew it."

Carroll says there's no "silver bullet" for fixing the disinformation problem, but creating a system that has more transparency, accountability and enforcement is key. It's also important to force these companies to repair the damage they've done, which may include forcing them to fund newsrooms. Disinformation will always find its place on the internet, as it's very difficult to combat effectively, but if we can get to the root of the problem and make it less potent, then we can start moving in the right direction and create a less chaotic and harmful information ecosystem.

Elizabeth Warren for Attorney General

Sen. Kamala Harris’s selection to be the Democratic vice presidential nominee last month led to  speculation about which stars from the primaries may end up in Joe Biden’s administration if he wins in November. One person who’s received a lot of attention is Sen. Elizabeth Warren. Some say Warren should stay in the Senate, and perhaps become Senate Majority Leader, and others have suggested that Warren become Treasury Secretary.

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Trump will almost certainly challenge the results if he loses — here's how that could play out

As he did in 2016, Donald Trump is constantly claiming that if he loses in November it will be proof that the vote was rigged against him. He tweets regularly, contrary to the available evidence, that mail-in voting will lead to massive amounts of voter fraud when such fraud hasn’t been a significant problem in any presidential election in modern history.

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Experts outline what Joe Biden needs to do to contain the Covid-19 crisis if he wins in November

If Joe Biden wins in November, he’ll likely be facing a widespread pandemic during the peak of flu season when he takes office in January. His ability to handle the Covid-19 crisis will surely be a defining aspect of his presidency, as it has come to define Trump’s. It’s important that he get it right. Infectious disease experts tell AlterNet that there are some important steps Biden must take early on to get the country on the right track.

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Joe Biden will have to rebuild a shattered American economy if he wins in November

Joe Biden is starting to let us in on how he plans to revive an economy that has been ravaged by Donald Trump’s mismanagement and a historic pandemic if he assumes the presidency next year, and there are some places where he’s moving in the right direction and some places where he should be bolder.

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Pundits with long track records of getting things wrong are sure that 'defund the police' will doom Dems in November

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If Joe Biden wins in November, COVID-19 could force his hand on climate change

The COVID-19 pandemic has had profound impacts on the US economy, and it’s likely to have similarly far-reaching effects on our politics. Over 40 million Americans are currently unemployed. Recent polls have found economists believe it will be years before the economy recovers fully.

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Here are three reasons why Joe Biden should embrace cannabis legalization today

Ask pretty much any political strategist if a candidate should get behind a policy that has the support of 78 percent of their party and over two-thirds of the nation in general, and they’ll probably tell you they should. It’s not easy to find policies that have such broad support, but Pew’s most recent polling on support for cannabis legalization shows that’s where things stand for presumptive Democratic nominee Joe Biden, and legalization is likely to become more popular as additional states legalize and recreational cannabis is normalized. Biden currently only supports decriminalizing cannabis at the federal level. There are a number of reasons why it is time for him to change his tune.

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The Technology Being Used to Control Workers by Tech Companies Is Freakishly Dystopian

You’ve been fired. According to your employer’s data, your facial expressions showed you were insubordinate and not trustworthy. You also move your hands at a rate that is considered substandard. Other companies you may want to work for could receive this data, making it difficult for you to find other work in this field.

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Donald Trump's Surveillance State: All the Tools to Suppress Dissent and Kill Free Speech Are Already in Place

When Donald Trump takes office in January, he will inherit a surveillance state that George W. Bush largely created and that President Obama refused to rein in. As has been explained before, privacy is vital to a democracy, and the fate of free speech and the free press are in the hands of a thin-skinned bully who doesn’t seem to care for them.

“Surveillance powers have a history of abuse in totalitarian societies,” Neil Richards, a law professor at Washington University in St. Louis, told Salon. “They also have a long history of abuse in the United States, from wiretapping to new forms of digital surveillance.”

Richards also explained that American agencies have created files on dissidents and used their power to disrupt political expression.

“The most extreme case is that of the FBI’s surveillance of Martin Luther King, in which it used evidence of an extra-marital affair he was having to attempt to convince him to kill himself,” Richards said. “Put simply, widespread unconstrained government surveillance has a huge potential for abuse and can be deeply corrosive of democratic culture, free speech, and other civil liberties.”

When people know they’re being watched, they tend to not speak out. If you’re considering protesting, writing about the president or acting in any political manner, you’re less likely to do so when you think those you’re opposing are keeping tabs on you.

“There’s fairly significant evidence to back the idea that when you think you’re being watched you tend to conform, in large part because humans are fairly conformist animals, and we like making sure that our neighbors don’t hate us,” Margot Kaminski, an assistant professor of law at Ohio State University, told Salon. “This is the reason the Stasi established its version of a surveillance state in East Germany, because if people think they’re being watched all the time, they’re more likely to move toward the mean, which means less dissent.”

Considering Donald Trump is known for being a person who relishes revenge, it seems highly plausible that he will use the vast powers of the presidency to pursue personal vendettas. A man who can’t stop himself from writing an angry tweet in the middle of the night when someone offends him is likely not someone who will crack open a book on civil liberties before targeting a political enemy with surveillance powers and more. With Trump in the Oval Office, Richard Nixon’s paranoia may look quaint by comparison.

“There are classical historical examples of this,” Kaminski said. “You have Nixon using the DOJ and IRS to go after political enemies, you have Hoover building dossiers on political dissidents and most prominently the FBI’s file on Martin Luther King Jr., which they used specifically to try to discourage him from activism. There’s a long line of unfortunate historic precedents.”

Something Nixon and Hoover and the like did not have is the ability to create complex pictures of every American by harnessing the power of “big data.” Big data is a large trove of information that can be analyzed to look for patterns and associations. If I know what you bought on Amazon, what you said on Facebook, who you’re friends with and what you read, I can get a very detailed idea of who you are. This becomes a problem when someone in power wants to target a specific group of people, like Muslims or immigrants.

“The private companies that tout themselves as the beneficiaries of big data really need to think very carefully about, even more so now, their relationships with government and the impact of the tools they’re building,” Kaminski said.

Trump only stoked those concerns by selection  Rep. Mike Pompeo (R-Kan.) to run the CIA. Pompeo wrote in an op-ed earlier this year that the we needed a “a fundamental upgrade to America’s surveillance capabilities.” Sen. Rand Paul (R-Ky.) is already questioning Trump’s selection of Pompeo, because he’s concerned about privacy rights.

Although Donald Trump will not have direct control over local police departments, he will likely be able to influence them significantly. As we saw with the War on Drugs, police departments can be coerced into behaving as the federal government wishes by offering funds tied to the prioritization of specific goals. The federal government can also convince police departments to adopt specific technologies, like surveillance technologies, by offering them large grants.

Our surveillance state has few checks and balances, and it is controlled almost exclusively by the executive branch. If President Obama wants to use his final months wisely, he should do everything he can to change this. In absence of that, we can only rely on a few vocal Democrats and Republicans in Congress, including Sen. Ron Wyden (D-Ore.) and Sen. Rand Paul (R-Ky.), to stand between us and an all-seeing, all-hearing orange-skinned Orwellian nightmare.

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It's High Time: If We Can Legalize Marijuana, Why Can't We End the Misguided War on Drugs?

On Election Day, my home state of California voted to legalize recreational cannabis, as did Massachusetts, Maine and Nevada. So the 2016 elections represented a substantial victory for the legalization movement, which has managed to pass referendums in seven states. With 57 percent of the country now supporting marijuana legalization, according to Pew, it seems likely there will be a nationwide victory sometime in the next few years. However, the War on Drugs is far from over.

Even if marijuana is legalized throughout the United States, there will still be numerous drugs in this country that remain very much illegal, and Americans will suffer because of this. Drugs like psilocybin mushrooms, LSD and MDMA have all demonstrated great potential when it comes to medical benefits, and shown little potential for harm. Still, the idea of legalizing those drugs any time soon seems as likely as Donald Trump hosting a quinceañera.

“LSD, psilocybin and MDMA, when combined with psychotherapy, have tremendous medical potential for treating psychiatric illnesses in people for whom other treatments have failed,” Rick Doblin, founder and executive director of the Multidisciplinary Association for Psychedelic Studies (MAPS), told me in an email. “These psychedelic drugs need to be legalized, both through scientific drug development studies designed to obtain FDA approval for prescription use and through political means so that they are legalized for non-medical purposes like personal growth, spirituality, couples therapy, creativity, innovation, and celebratory experiences.”

Researchers in Switzerland found in 2014 that LSD can be helpful for patients dealing with end-of-life anxiety related to a terminal illness. The same sort of conclusion has been drawn for psilocybin. Psilocybin has also proven useful for treating severe depression. MDMA has shown great promise for treating PTSD, when used alongside psychotherapy. All of the drugs remain illegal in the United States, and there has been little effort to change that.

Let’s not stop there, though. The War on Drugs has cost America well over $1 trillionsince it began under Richard Nixon. This war has been the main cause of our country’s mass incarceration problem. As it is often noted, we have 5 percent of the world’s population and roughly 25 percent of its prisoners. You cannot have a War on Drugs, you can only have a war on people. As Gore Vidal famously used to say of the War on Terror, you cannot have a war on a noun, as that is like saying you’re at war with dandruff. Too many can’t get jobs because of criminal records or lose decades of their lives over small offenses.

We must legalize all drugs. You cannot regulate a drug that is not legal, and you cannot stop addiction by throwing citizens in cages and putting in no effort to rehabilitate them. I am not arguing for the selling of meth and heroin at your local Target store, but I am arguing for a scenario where you are not put in cuffs for having one of those drugs in your pocket.

Portugal decriminalized all drugs nearly decades ago, and the country has not spiraled into hellfire and cannibalism. In fact, drug use decreased, drug-related deaths went down and the instances of HIV infections decreased severely. Of course, the country also initiated harm-reduction programs and invested in reducing addiction, but it appears decriminalizing the drugs didn’t turn every corner into a wanton cocaine party. Perhaps we could learn from this example.

Thanks to abuse of prescription painkillers, this country faces a widespread opioid crisis — and all those drugs are legal. While we divvied out legal pills that people didn’t really need to fill the pockets of greedheads, as Hunter S. Thompson called them, we locked up people using a different version of the same drugs. Many who got addicted to painkillers while on prescription turned to heroin when they couldn’t be prescribed them any more or couldn’t afford them. The whole system is toxic.

I’m calling for a true legalization movement. No longer should lives be ruined because of some minor drug experimentation or because a citizen who needed to make an extra buck sold some substances to a willing buyer. The legalization of marijuana will be a milestone, especially since it’s the most popular drug out there, but we cannot stop there. We should murder the War on Drugs and burn its cadaver. This “war” has been one of the biggest policy failures in American history, and we’ve known this for quite some time. Let’s grow up and move forward. We cannot call ourselves the land of the free when we represent the land of the detained.

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Why Predicting Crimes Is Almost Always Racially Biased

As police work becomes more futuristic, it appears it is doomed to be stuck in the past. The concept of predictive policing might sound good in theory, but it could be dangerous. The idea is that if police could figure out where crime is most likely to happen, they might be able to prevent it or catch a person in the act. However, the actual result appears to be an oppressive reinforcement of age-old racial discrimination.

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The Case for a Right to Education

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