Like Texas, California is a big state. And there are many districts and divisions where the California Attorney General can prosecute Perhaps the most logical choice would be the Sacramento Division of the Eastern District of California? It is where the state capital is located. At least based on my recollection, during the Trump years, California’s attorney general did not choose this location. Why could this possibly be? Well, there are six district judges on that duty station: three were appointed by President Obama, and three were appointed by President Bush. 50/50 are bad odds. But you know who sued California in Sacramento? Attorney General of the United States, who challenged California’s sanctuary law in the state capital. He was willing to take his chances there. Anything is better than a city by the bay.
Based on my recollection, the California Attorney General would routinely file strategic cases in the San Francisco Division of the Northern District of California. And wouldn’t you know, 100% Judges in that division are appointed by Democratic presidents. All of them. President Trump and George W. Bush were unopposed in the San Francisco division. And given that these justices had to survive the blue slip process led by Senator Dianne Feinstein, I suspect these justices were closet conservatives. For example, one of President George HW Bush’s nominees to the San Francisco division was none other than Judge Vaughn Walker, who presided over the Prop 8 case. In fact, I suspect that many of the Reagan, Bush 41, and Bush 43 district court appointees in California were actually moderate-leaning-liberals to get blue slips. It’s a miracle that Saint Benitez made it to San Diego. Alas, he’s always under attack, because his Second Amendment opinions are automatically bankrolled by circuit rule (or something like that).
For the California Attorney General, there is no need to prosecute shops or forum shops. Just leave your heart in San Francisco, and the ban nationwide.
There are other examples, of course. New York’s attorney general can file strategic lawsuits in the state capital, Albany. But it routinely files in the Southern District of New York. In contrast, conservative litigants challenge COVID restrictions and gun control laws in Albany. There is a 50/50 shot of drawing a Republican-appointed judge. The Maryland attorney general could have sued Trump over the emoluments clause in the Baltimore division of the District of Maryland, but he chose the Greenbelt division. Lo and behold, all judges in Greenbelt are Democratic appointees. In New Jersey, the attorney general recently tried to move the Second Amendment from a Trump appointee to a more favorable judge. Don’t forget to shop the generous judges in the Austin and Laredo sections of Texas. etc.
all Litigants carefully select their forum, including state attorneys general. I find this debate over forum-shopping almost as tedious as every time the Supreme Court steps into an emergency docket. Sing it Tony.