When a federal trial judge in St. Louis issued an order last week blocking the latest Biden-Harris administration student loan relief plan, the Republican state attorneys general who filed the case gleefully celebrated yet another court victory over Americans struggling to pay their college debts. But those GOP AGs apparently don’t want to discuss the route by which the case arrived in Missouri: They seemingly tried to hand-pick a federal judge in coastal Georgia to hear their complaint, only to have that judge, a close associate of Supreme Court Justice Clarence Thomas, mysteriously recuse from the matter, and then have a second Georgia federal judge, after granting temporary relief, ship the case to St. Louis.
Let’s break all that down.
On October 3, U.S. District Judge Matthew T. Schelp of the Eastern District of Missouri
issued a preliminary injunction barring the Department of Education from implementing proposed regulations to provide student debt relief to several major categories of borrowers, including those who owe more than they first borrowed because of mounting interest, those who have made payments for more than 20 years, and those whose schools failed to offer them “sufficient financial value.” The Biden administration estimated the new rules would completely cancel student debt for 4 million people and erase accrued interest for 23 million.
Judge Schelp held that the GOP AGs were likely to succeed on their claim that the Department of Education lacked the legal authority to cancel all this debt without authorization from Congress.
The ruling was another notable case of extreme judicial activism by supposedly “conservative” judges; Schelp, unusually, struck down the proposed rule before the Department of Education had even finalized it.
Persis Yu, Deputy Executive Director and Managing Counsel at the non-profit Student Borrower Protection Center, said in
a statement that Judge Schelp’s ruling was marked by “a dearth of legal reasoning.”
But Judge Schelp, a Donald Trump appointee, is not the first federal judge to handle the latest case in the month since it was filed. He is, remarkably, the fifth.
Led by Missouri attorney general Andrew Bailey, and that state’s solicitor general, Josh Divine, the states of Missouri, Georgia, Alabama, Arkansas, Florida, North Dakota, and Ohio
filed the lawsuit, against the education department, on September 3 in the U.S. District Court for the Southern District of Georgia, and specifically in that court’s division based in Brunswick, Georgia, on the state’s east coast, close to the Florida state line.
The Brunswick Division has exactly one U.S. District Judge: Lisa Godbey Wood, appointed by George W. Bush.
The Georgia attorney general’s office tends to file its
significant federal lawsuits in the U.S. District Court in Atlanta. So why was this action to nullify major student debt relief filed in Brunswick, when the Georgia AG doesn’t even have staff there and had to rely on a private local lawyer to assist? There was always the risk that a case filed in Atlanta would be assigned to a judge skeptical of the Republican AGs’ effort to void debt relief, including whether the AGs would have legal standing to contest the action. Perhaps the GOP AGs thought Judge Wood was a better bet to do what they wanted.
But the same day that the case was filed, Judge Wood issued a two-sentence
order recusing herself and transferring the case to R. Stan Baker, Chief Judge of the Southern District of Georgia. Wood did not state the reason she was recusing.
The next day, Chief Judge Baker issued an order reassigning the case to another judge on the court, J. Randall Hall, also a George W. Bush appointee.
One observer posited to me that the GOP AGs might have already known that Judge Wood had a reason for recusal when they filed the case in front of her; under this theory, the AGs bet that, after Judge Wood recused, Chief Judge Baker would hand-assign the case to another “conservative” judge who would be a good bet to strike down the new Biden student debt rules.
That theory might sound far-fetched. But the day after receiving the case, Judge Hall
granted the GOP AGs’ motion for a temporary restraining order, thus blocking the regulations. On September 19, after yet another member of the court, Magistrate Judge Christopher L. Ray, had handled several preliminary motions in the case, Hall extended the restraining order an additional two weeks while he considered the AGs’ motion for a longer preliminary injunction.
But on October 2, Judge Hall threw a curveball: He granted the Department of Education’s motion to dismiss the state of Georgia from the case, holding, appropriately, that Georgia had not demonstrated an interest sufficiently concrete to provide standing to contest the debt regulations. In short, Georgia did not have a significant interest in ensuring that its own citizens, and those of other states, would remain mired in student loan debt.
With Georgia out of the litigation, Judge Hall further ruled that a federal court in Georgia was not the proper venue for the case. He transferred the lawsuit to Missouri, holding that that state had “clear standing” based on the potential harm the rule posed to MOHELA, Missouri’s student loan agency.
The transfer set the stage for the Missouri judge’s decision, the very next day after the case was sent over from Georgia, that blocked the Biden rule pending final resolution of the lawsuit.
So the GOP AGs got the outcome they wanted, at least for now. But why didn’t they go to Missouri, where the argument for standing to bring the case was much stronger, in the first place?
“It appears that the Missouri AG has achieved through dumb luck what they were hoping to get through strategic maneuvering,” Persis Yu told me. “Getting transferred to the Eastern District of Missouri was not necessarily going to be in their favor, which is why I assume they avoided it in the first place. While no liberal oasis, there are a number of Democratic-appointed judges, and so the outcome they got was far from guaranteed.”
But, Yu says, through apparently random assignment the GOP AGs ended up with Schelp, “one of the most ideologically driven judges, who is seemingly happy to eviscerate precedent and the [federal Administrative Procedure Act] to give the Missouri AG what he is looking for.”
Spokespersons for the AGs wouldn’t tell me why they didn’t file in Missouri in the first place, and declined to opine on the reason for Judge Wood’s recusal.
Kara Murray, communications director for Georgia attorney general Chris Carr, said their office was “unable to speak” to my questions, and simply noted that the Missouri District Court “immediately granted a preliminary injunction.”
Madeline Sieren, communications director for Missouri Attorney General Bailey, told me her office “cannot answer these questions at this time, as litigation is ongoing.” She added, “Happy to answer questions that don’t reveal litigation strategy or speculate on judges’ recusal decisions.”
Sieren referred me to Attorney General Bailey’s X (formerly Twitter) feed, where he crowed about the court victory. “A huge -and quick – win for every American who won’t have to pay for someone else’s Ivy League debt,” Bailey
tweeted, ignoring that many of those who would benefit from the Biden debt relief plan are struggling middle- and low-income Americans who were scammed by high-priced for-profit colleges. And also ignoring that getting all these people out of heavy debt would help them to have families, buy homes, go back to school, and engage in other activity that would boost the U.S. economy.
Attorney General Bailey struck out with the U.S. Supreme Court in August when, facing a primary election challenge from a lawyer who has represented Donald Trump, he made an absurd effort to
press the high court to halt Trump’s criminal sentencing in New York until after the November election. (Bailey won his primary, and the New York judge, Juan Merchan, eventually postponed
the sentence on his own.)
The case in which Judge Schelp issued his injunction is the third lawsuit led by Attorney General Bailey to halt the Biden administration’s efforts to grant debt relied to student loan borrowers. Over the summer, the St. Louis-based 8th Circuit Court of Appeals
temporarily blocked an earlier Biden debt relief plan called SAVE, as well as blocking parts of other federal Income-Driven Repayment plans on which millions of borrowers have long relied to reduce their debt burden.
Bailey originated
that case, Missouri v. Biden, by suing in the St. Louis federal court, but this time he decided to try Brunswick, Georgia, and its only judge.
Shopping for judges is
not a new tactic for Republican attorneys general in their quest to nullify Biden administration regulations (or for the for-profit college industry in its
efforts to do the same). But proposed federal legislation to curb judge-shopping has gone nowhere in the bitterly divided U.S. Congress.
(Democratic attorneys general and progressive groups often appeared to try judge shopping during the Trump administration, especially by filing in California, headquarters of the relatively liberal 9th Circuit Court of Appeals, but California federal district court rules assign cases at random within a district, preventing the automatic assignment to a local federal judge by filing in a specific courthouse.)
Missouri’s solicitor general,
Josh Divine, who has been litigating the case for Bailey’s office, is a former aide to U.S. senator Josh Hawley (R-MO). He also was once a law clerk for Judge William Pryor of the U.S. Court of Appeals for the 11th Circuit, the appellate region that includes Georgia, and perhaps gained some familiarity with Judge Wood and Judge Baker in that capacity. After clerking for Pryor,
Divine clerked for U.S. Supreme Court Justice Clarence Thomas, and Divine trumpets his
fandom of Thomas aggressively,
calling Thomas “the GOAT Supreme Court Justice.”
Meanwhile, Justice Thomas appears to be a fan of Brunswick’s Judge Wood. When Wood was sworn in for her own term as Chief Judge of the Southern District of Georgia in 2010, Justice Thomas, a south Georgia native,
showed up to effusively praise her.
When you have MAGA-inspired attorneys general and MAGA-connected judges and
justices endless gaming the system and ignoring long-standing legal precedents, fairness and justice are crushed, as are, in this instance, the hopes and dreams of generations of hard-working Americans who are buried under insurmountable student loan debt.
