When Northern District of Texas Judge Reed O’Connor granted Texas’ motion to enjoin the bureaucrats’ implementation of Title IX “guidance” requiring schools to accommodate transgender students in bathrooms, locker rooms and housing, advocates were furious. They hoped to sneak in their administrative rewrite of the law before the bell when a new administration might not be as willing to circumvent the law to achieve their goal.

Beyond appeals to emotion, they accuse Texas Attorney General Ken Paxton of “cheating” by forum shopping the case to O’Connor because he’s a sympathetic judge. Or, as they put it, antagonistic to transgender issues.

One thing Paxton didn’t mention is that the state did have a choice in where the the new case was filed. Texas chose the courtroom of U.S. District Judge Reed O’Connor, the same judge who had just ruled in the state’s favor in the other transgender case.

The phrase “forum shopping” is derogatory, suggesting that someone cheated to find a court where he could prevail rather than the proper court where an action should have been brought. Did Texas cheat?  That would certainly seem to be the clear implication.

“The bottom line is that the Texas Attorney General’s office has figured out it doesn’t need the Supreme Court to thwart laws nationwide it doesn’t agree with, just lower court judges that are willing to grab that power for themselves,” wrote Isidro Mariscal of Alliance for Justice in a blog post.

All of this puts Paxton in a very sweet spot in his legal crusade against the federal government.

“He’s in a candy shop right now, like a little kid,” said Upton.

Rhetoric aside, there is improper forum shopping and then there is good lawyering. Distinguishing between the two is what differentiates a lawyer’s perspective from a loser’s gripe. If Texas manipulated the rules, engaged in some sort of wrongdoing, used its governmental power to circumvent the jurisdictional requirements that would apply to everyone else in order to end up in that “candy shop,” then Texas engaged in improper forum shopping.

But if the jurisdiction in the Northern District of Texas was proper, and Paxton merely selected the venue to file suit where he thought it most favorable to his cause, does that emit a “certain whiff of unfairness”?

Paxton “has found a way to find a court he likes,” said Kenneth Upton, senior counsel at the Dallas office of Lambda Legal, an LGBT rights organization that filed a brief in support of the Obama administration in the schools case.

There’s nothing outright wrong with “forum shopping,” the practice of picking the court that would likely be the most sympathetic to your claims. Good legal strategy involves selecting where to sue when more than one court has the authority to hear your case. Lawyers routinely think about how the judges have ruled before, who makes up the jury pool and which appeals court would review a decision.

“A lawyer who did not sue in the place that’s most favorable to his or her client, it would be malpractice,” said Daniel Klerman, a law professor at the University of Southern California who has written about forum shopping. “Nothing shocking or untoward about it,” he added.

While the Wichita Falls Division of the Northern District federal court is described “inconvenient,” in that it’s a long drive from Austin, there is no challenge to its being a proper venue for this action.  Whether Judge O’Connor is such a friend to the state, or antagonistic to the transgender cause, is based on his decision in a gay marriage case that offended LGBT advocates.

From the perspective of advocates, an adverse ruling from a judge isn’t a product of the law, but antagonism toward them. After all, anyone who didn’t hate LGBT concerns would never rule against them. So the ruling wouldn’t be the product of the Department of Education’s Office of Civil Rights, going rogue, circumventing the required procedures for trying to create new, never-before existing regulations, extending the law beyond anything Congress imagined when enacted, and forcing it down schools’ throats under the guise of mere “guidance” upon pain of loss of federal funding. Of course not. It’s that the judge hates them.

Now Texas appears to be mastering a new level of forum shopping ― where a large state with a healthy litigation budget identifies federal policies it disagrees with, invites other states to join in the action and then chooses a thinly staffed court with a sympathetic judge. Not unlike when Paxton spearheaded a successful 26-state challenge to President Barack Obama’s executive actions on immigration.

“He’s saying, ‘Here, I’m having a party. You’re invited,’” Upton observed.

This facile conflation of issues is troubling on every level.  Texas has certainly done yeomen’s work in challenging the administration’s actions. But if it disagree with those policies, whether rightly or wrongly, this is the way our system of government provides to challenge them. The innunendo, that it’s somehow wrong to question the unilateral use of executive power in court, is quite a remarkable proposition. What should Texas do, put Rangers at the border with orders to shoot federal agents? You go to court and challenge them, which is what Texas did.

But to call it a “new level of forum shopping” is to show a disappointing lack of grasp of what forum shopping means, and to parrot the bitching of the losing side rather than demonstrate detached legal analysis. Paxton didn’t “forum shop.” Paxton made the choice any competent and ethical lawyer would make. His opponents’ complaint is that he wasn’t incompetent enough to give them a better chance. Sorry, kids, but that’s really not the attorney general’s job.

So what’s the real complaint here? That Texas Attorney General Ken Paxton is cheating by making lawful, ethical and smart legal choices. That’s so unfair!  And will he get away with it? Well, that’s why our legal system has appellate courts. If Judge O’Connor is wrong, appeal him. That’s how our legal system works, and lawyers really ought to grasp that rather than feed the paranoia that when a cause loses in court, it’s because of cheating and haters.