'So You're Okay With Forum Shopping?': Welch Grills Witness At Hearing On Universal Injunctions

2 days ago

At today's Senate Judiciary Committee hearing, Sen. Peter Welch (D-VT) spoke to witnesses about the use of universal injunctions by judges.

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Transcript

00:00Thank you, Mr. Fladdock. We appreciate your testimony. Thank you, Senator Padilla.

00:05Thank you. Just following up on that, I mean, is there agreement among the three of you that dealing with

00:10forum shopping would be beneficial for the judiciary and for the strength of the rule of law?

00:16Do all of you agree on that?

00:20Yes, but it would only solve part of the problem.

00:23I understand that, but it would be worthwhile, Professor Fladdock, you said that. How about you?

00:28I think plaintiffs, if they have the ability to file a lawsuit in a district, should be able to do that.

00:39I think that the incentive for forum shopping is that you think you can get a judge who can be a ruler for the whole nation.

00:48So fix the problem of judges overreaching power.

00:52So you're okay with forum shopping, just so I understand.

00:54Well, it depends what you mean by that, Senator.

00:56I mean, pick where you file. What lawyer wouldn't do that? Where do you think you can win?

01:03Well, there's all kinds of reasons why lawyers choose to file in different districts.

01:06All right. Okay. I got it. I think I got your answer.

01:09But judges—

01:09Two against to reform that, and one thinks it's fine.

01:14The next thing, just this practical question of a class action lawsuit versus an individual suing.

01:22I'll ask you, Professor Bray, because you're talking about class actions, and I support class actions.

01:27There's been a lot of debate within the committee about whether they're useful or not,

01:31and a lot of pushback on the use of class actions.

01:34But there's an enormously increased burden on the plaintiffs in order to get class certification.

01:41Is there not?

01:43Senator, with respect, this bill, the chairman's bill, would leave class—

01:48I'm not asking about the chairman's bill.

01:50I'm just talking—I'm a lawyer.

01:51Somebody comes in, birthright citizen is the claim.

01:55I'm just a—I'm a small-town lawyer.

01:57That's what I was, White River Junction.

01:59I say, you know what? You're right.

02:00Let's take the case. I'll do it.

02:02But if I have to go get a class certified, just tell me the steps I have to go through

02:07for getting that class certification as opposed to just taking my client,

02:11who came into my White River Junction office,

02:13and we go to the federal district court in Burlington.

02:17So, class certification does require more steps,

02:21but it's entirely appropriate given that what you're seeking is a remedy to represent everything—

02:26No, no. I'm talking—I understand that it's appropriate.

02:30I'm just talking about what is the practical burden in terms of cost,

02:34in terms of what kind of legal power you have to have

02:39as opposed to a single lawyer who has a single client

02:43who comes in to see me and wants relief.

02:46What's it going to cost for me to do a certification for class

02:51as opposed to me just filing and paying the filing fee at the federal district court?

02:56So, I do agree, Senator, that there are more requirements,

03:01and that means more attorney hours and more costs.

03:03So, I agree with that.

03:04But it is also—matches the scope of the relief sought.

03:09And so, it really is—

03:10No, I get that.

03:12But there's an acknowledgment here that it's a much bigger deal.

03:16One of the wonderful things about our justice system is that

03:19an individual who is harmed can come into a lawyer,

03:23and that lawyer may take it pro bono.

03:25But if you have to have the resources of a major firm,

03:30it's a much bigger uphill challenge to get your day in court.

03:34Second thing, we've got a situation here with the courts that's unprecedented,

03:39and we've got a real debate on both sides of the aisle

03:42about who is weaponizing the court.

03:45I understand that.

03:47But do you, Professor Vladek, have a view about whether the exec—

03:52and by the way, let me just give a context.

03:54The context that we're in right now is the separation of powers

03:58and three co-equal branches of government.

04:00And my view is that the legislature is essentially ceding authority to the executive,

04:05and that that's very dangerous in the long run for the well-being of our democracy.

04:09That's my point of view.

04:10I'm not asking you whether you agree or don't.

04:13But I'll ask you, Professor Bray,

04:15what do you see as the impact on the rule of law

04:19when the executive orders the Justice Department to dismiss a corruption case

04:25against the mayor of New York City

04:28in order to get his cooperation on an executive policy on immigration?

04:36The rule of law applies to all three branches,

04:38and each one needs to act consistently with the law.

04:41That includes the executive,

04:42and also for the subject of the hearing today, that includes the courts.

04:46I am with you in thinking that it is imperative for every branch.

04:51I know that, but I'm talking something that—real world, this happened.

04:56We got a major corruption case against the mayor of New York City,

05:01and it was dismissed for political reasons.

05:04Does that conform to your view of how the rule of law should operate?

05:10No, it does not.

05:11Thank you very much.

05:12Thank you, Senator Welch.

05:13Thank you, Madam Chair.

05:15You know, I was struck by the questions on the law firms

05:19and the approach of President Trump

05:21to try and bring them back to the table of working with this administration.

05:26I was struck—I found some of that ironic in the questioning, Mr. Panuccio, and welcome.

'So You're Okay With Forum Shopping?': Welch Grills Witness At Hearing On Universal Injunctions

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