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• curation date: 2023-02-09
• Matthew Joseph Kacsmaryk (born 1977) is a United States district judge of the United States District Court for the Northern District of Texas.
He was nominated to the position by President Donald Trump.
EDUCATION AND CAREER.
Kacsmaryk received his Bachelor of Arts, summa cum laude, from Abilene Christian University in 1999 and his Juris Doctor with honors from the University of Texas School of Law in 2003.
From 2003 to 2008, he was an associate in the Dallas office of Baker Botts, where he focused on commercial, constitutional, and intellectual property litigation.
From 2008 through 2013, he was an assistant United States attorney in the Northern District of Texas where he was lead counsel in over 75 criminal appeals and co-counsel in high-profile criminal and terrorism trials.
In 2013, under the Obama Administration, Kacsmaryk received the attorney general's award for excellence in furthering the interests of U.S. national security for his work in United States v. Aldawsari.
He was deputy general counsel to First Liberty Institute.
He has been a member of the Fort Worth chapter of the Federalist Society since 2012.
He has been a member of the red mass committee for the Roman Catholic diocese of Ft.
Worth.
FEDERAL JUDICIAL SERVICE.
On September 7, 2017, President Donald Trump nominated Kacsmaryk to serve as a United States district judge of the United States District Court for the Northern District of Texas, to the seat vacated by judge Mary Lou Robinson, who assumed senior status on February 3, 2016.
On December 13, 2017, a hearing on his nomination was held before the Senate Judiciary Committee.
On January 3, 2018, his nomination was returned to the president under Rule XXXI, Paragraph 6 of the United States Senate.
On January 5, 2018, President Trump announced his intent to renominate Kacsmaryk to a federal judgeship.
On January 8, 2018, his renomination was sent to the Senate.
On January 18, 2018, his nomination was reported out of committee by an 11-10 vote.
The American Bar Association rated Kacsmaryk "qualified" for the nomination (a ranking below "well qualified").
However, Senate Democrats and a number of LGBT advocacy groups opposed his nomination due to his writings and comments on LGBT rights and women's contraceptive rights.
He has worked on cases opposing certain LGBT protections in housing, employment, and health care.
He has referred to homosexuality as "disordered", and to being transgender as a "delusion" and a "mental disorder".
He opposes the Roe v. Wade Supreme Court ruling that legalized abortion in the United States.
On January 3, 2019, his nomination was returned to the president under Rule XXXI, Paragraph 6 of the United States Senate.
On January 23, 2019, Trump announced his intent to renominate Kacsmaryk for a federal judgeship.
His nomination was sent to the Senate later that day.
On February 7, 2019, his nomination was reported out of committee by a 12-10 vote.
On June 18, 2019, the Senate voted 52-44 to invoke cloture on his nomination.
On June 19, 2019, his nomination was confirmed by a 52-46 vote.
He received his judicial commission on June 21, 2019.
Kacsmaryk serves the Amarillo division of the United States District Court for the Northern District of Texas, which encompasses twenty-six counties in the Texas Panhandle.
NOTABLE CASES.
In 2021, Kacsmaryk ordered the reinstatement of a Trump administration policy that required that asylum seekers wait outside U.S. territory while their claims are processed.
In his order, he said that the Biden administration had ended the policy without fully considering the consequences.
His decision was overturned by the Supreme Court of the United States on June 30, 2022.
In November 2022, Kacsmaryk ruled that the Biden administration violated the Administrative Procedure Act while misinterpreting the Affordable Care Act to enforce the prohibition of discrimination based on sexual orientation and sexual orientation within "on the basis of sex".
Also in 2022, Kacsmaryk vacated protections for transgender workers enacted by the Biden administration, citing Bostock v. Clayton County saying that Title VII "prohibits employers from discriminating against employees for being gay or transgender, "but not necessarily in the case of all correlated conduct." https://en.wikipedia.org/wiki/Matthew_J._Kacsmaryk
• https://en.wikipedia.org/wiki/Category:Abilene_Christian_University_alumni
• https://en.wikipedia.org/wiki/Category:Anti-LGBT_sentiment
• https://en.wikipedia.org/wiki/Category:Assistant_United_States_Attorneys
• https://en.wikipedia.org/wiki/Category:Federalist_Society_members
• https://en.wikipedia.org/wiki/Category:People_associated_with_Baker_Botts
• https://en.wikipedia.org/wiki/Category:Texas_lawyers
• https://en.wikipedia.org/wiki/Category:United_States_district_court_judges_appointed_by_Donald_Trump
• https://en.wikipedia.org/wiki/Category:University_of_Texas_School_of_Law_alumni
• see also: Economy - Economic systems - Mixed economies - Social economy - Nonprofit organizations - 501(c)(3) organizations - Alliance Defending Freedom
• Politics - Political philosophy - Political theories - Political ideologies - Conservatism - Social conservatism - Anti-abortion movements - United States - Strategies - Comstock laws
• (2023-02-06, https://msmagazine.com/2023/02/06/fda-abortion-pills/) "The Same Dark Money Groups That Helped Overturn Roe Are Also Behind Attacks on Abortion Pill.
Dark money groups are fighting to eliminate one of the easiest to access and safest forms of abortion in this country: the abortion pill." A federal judge (Matthew Kacsmaryk) installed by Donald Trump could declare a nationwide ban on the abortion pill mifepristone as soon as this week (2023-02).
Since the U.S. Supreme Court's right-wing faction overturned Roe v. Wade last summer (2022), abortion pills have become a vital option for millions of people, especially for those living in states with abortion bans.
More than half of all abortions in the U.S. - even before the Dobbs ruling reversed decades of federal law protecting abortion access - were medication-induced abortions.
The same dark money groups that helped overturn Roe v. Wade - and then argued that the edict "empowered women" - are now taking aim at abortion pill access.
In 2022-11 Alliance Defending Freedom (ADF) - which has been designated by the Southern Poverty Law Center as an anti-LGBTQ hate group - filed a lawsuit against the U.S. Food and Drug Administration.
This lawsuit is an unprecedented challenge to mifepristone, a medication that has been used for over two decades to terminate early pregnancies and manage miscarriages.
Alliance Defending Freedom (ADF) has received six-figure sums from DonorsTrust and Donors Capital Fund, entities designed to hide the identity of their huge right-wing donors.
However, some of those underwriting ADF are known.
The Charles Koch Institute - created from the fortune of billionaire industrialist Charles Koch - also gave ADF $275,000 in 2020.
Charles Koch and his late brother David Koch have asserted that as libertarians they are "pro-choice," but that spin is refuted by the long history of the Kochs' aiding the election of politicians and appointment of judicial candidates hostile to women's reproductive rights.
ADF could have filed this lawsuit virtually anywhere in the United States, but they chose Amarillo, Texas - where there would be a 100 percent chance of far-right Trump appointee, Judge Matthew Kacsmaryk, hearing the case.
Matthew Kacsmaryk previously worked for the right-wing litigation operation called the First Liberty Institute, and had previously written in opposition to access to abortion, access to birth control and against divorce.
First Liberty Institute frequently calls ADF "our friend" in pursuing their shared agenda for getting laws changed through judicial rulings.
First Liberty's leader in D.C., Benjamin Bull, was ADF's chief counsel and the architect of its litigation strategy.
"He (Matthew Kacsmaryk) is an anti-LGBT activist and culture warrior who does not respect the equal dignity of all people," said Senator Dianne Feinstein (D-CA) during Matthew Kacsmaryk's Senate confirmation hearing, reading from a letter of the Leadership Conference on Civil and Human Rights.
"His record reveals a hostility to LGBT equality and to women's health, and he would not be able to rule fairly and impartially in cases involving those issues."
• (2023-02-09, https://truthout.org/articles/trump-appointed-judge-could-impose-extreme-restrictions-on-abortion-meds/) "Trump-Appointed Judge Could Impose Extreme Restrictions on Abortion Meds.
Upending access to medication would be "devastating for abortion care," one abortion rights activist said." A federal judge appointed by former President Donald Trump could upend decades of policy on abortion medication, reversing the loosening of restrictions made in the past year and potentially outlawing the drug altogether.
Federal District Court Judge Matthew Kacsmaryk - who is based in Texas - will soon decide on a lawsuit brought forward by the far right legal organization Alliance Defending Freedom (ADF), which alleges that the Food and Drug Administration's (FDA) approval of mifepristone in 2000 was illegal and that the drug was not tested thoroughly enough.
The ADF - which seeks to have the drug made illegal - claims in its lawsuit, filed in 2022-11, that the federal agency "failed America's women and girls" by approving the drug too quickly.
Legal experts and medical professionals largely agree that this is incorrect.
Greer Donley, an associate professor at the University of Pittsburgh who is an expert in FDA-related law, has noted that the abortion medication was "rigorously" reviewed before it was approved.
"In fact, many argue the FDA has actually been largely overprotective and restrictive when it comes to mifepristone, so it's a bit ironic that these onerous regulations around the drug are being used as evidence of leniency," Greer Donley told The Guardian regarding the legal merits of the case.
Observers believe it's unlikely that Matthew Kacsmaryk will leave in place Joe Biden's executive orders and the FDA's recent actions loosening restrictions on abortion medication - and many fear Matthew Kacsmaryk may go further, granting the ADF's request to undo the FDA's approval of mifepristone from decades ago.
Matthew Kacsmaryk - who was nominated by Donald Trump in 2017 - is a member of the far right Federalist Society, and has worked for First Liberty Institute, a far right group that promotes a conservative Christian agenda through legal actions.
Matthew Kacsmaryk has twice ruled that the Biden administration must keep in place the anti-immigrant "Remain in Mexico" policy that Donald Trump implemented as president.
"At some point, Matthew Kacsmaryk will issue an order concerning the legality of a very common abortion drug," wrote Vox senior correspondent Ian Millhiser.
"And, if Matthew Kacsmaryk behaves as he has in past cases, the scope of that order will be limited only by his own desires and ambitions." The Biden administration has pledged to appeal any decision that further restricts abortion medication.
But since the case is in the jurisdiction of the Fifth Circuit Court of Appeals (deemed the most conservative in the country), it's unlikely an appeal could be won in that arena, or that an injunction would be placed on Matthew Kacsmaryk's eventual ruling.
After the Fifth Circuit decides on the case, it can only be appealed to the Supreme Court, where conservative justices have handed down numerous anti-abortion rulings, most notably in the Dobbs v. Jackson Women's Health case last summer (2022), which upended federal abortion protections that had been in place since 1973.
Abortion rights advocates have expressed concern about the case.
At least two groups that help Americans obtain abortion medication from other countries - Aid Access, and Plan C - have encouraged people in the U.S. to stockpile abortion medication before they become pregnant, in case they need it in the future.
Andrea Miller, president of the National Institute for Reproductive Health, has said that a ruling from Matthew Kacsmaryk could be "devastating for abortion care." "Cutting off critical access to abortion medication - which is the preferred method for more than half of abortion patients in the country - would cause significant harm, especially at a time when Dobbs has made it difficult or impossible for many to get care at clinics," Andrea Miller said.
• (2023-03-14, https://www.motherjones.com/politics/2023/03/texas-judge-medication-abortion-mifepristone-lawsuit/) "Will One Controversial Texas Judge Outlaw the Most Popular Form of Abortion for the Whole Country?
We're about to find out." For weeks, abortion rights advocates have been waiting for a potential bombshell: A conservative federal judge in Texas is expected to effectively outlaw the most popular method of abortion nationwide.
Now, the day may finally be here.
Judge Matthew Kacsmaryk, a Donald Trump appointee affiliated with the religious right, scheduled a hearing in the lawsuit challenging the FDA approval of mifepristone - the medication used in some 50 percent of abortions - for Wednesday morning (2023-03-15).
After the hearing, Matthew Kacsmaryk could issue a temporary injunction at any time.
The late notice of the hearing is "highly unusual," as The Washington Post reported Saturday (2023-03-11).
In an unannounced call with lawyers on both sides of the case on Friday (2023-03-10), Matthew Kacsmaryk requested they keep the upcoming hearing secret to avoid an "unnecessary circus-like atmosphere" at the courthouse - explaining that the case had already brought "a barrage of death threats and protesters and the rest," according to a transcript of the hearing.
Matthew Kacsmaryk had originally planned not to place the hearing on the public court docket until Tuesday afternoon (2023-03-14) - making it difficult for media or other members of the public to get to the remote Amarillo courthouse.
But after The Washington Post reported on the plans and a coalition of media organizations filed an objection, Matthew Kacsmaryk quietly placed a notice about the upcoming hearing on the docket.
The lawsuit Matthew Kacsmaryk is considering was brought by the Alliance Defending Freedom - the conservative Christian legal behemoth that drafted the Mississippi abortion ban at the heart of the case that overturned Roe v. Wade.
The complaint, filed on behalf of four doctors and a handful of anti-abortion medical organizations, claimed that the FDA had overlooked potentially harmful side effects when it green-lit mifepristone 23 years ago.
(According to the FDA, the original approval of mifepristone was based on "a thorough and comprehensive review of the scientific evidence" that found the drug was "safe and effective" when used as directed, and follow-up data in the ensuing years has turned up no new safety concerns.) In addition, the lawsuit argues the FDA's approval "exceeded its regulatory authority" in part because pregnancy is not an "illness," and also because an 1873 federal law made it a crime to distribute "obscene, lewd or lascivious" material through the mail, including "any article or thing" intended to be used for abortion.
The arguments in the case are seen by legal experts as a stretch, and that's being generous.
But in a strategic move, Alliance Defending Freedom filed the complaint in Amarillo, Texas - virtually guaranteeing that it would be heard by Judge Matthew Kacsmaryk.
A former staff attorney for a religious-right legal firm (Alliance Defending Freedom), the controversial judge (Matthew Kacsmaryk) was already known for making anti-abortion and anti-LGBTQ statements at the time he was nominated by Donald Trump and confirmed by a Republican Senate.
Since then, conservative legal activists have been lining up to send Matthew Kacsmaryk their cases - and Matthew Kacsmaryk has delivered, forcing the Biden administration to reinstate Donald Trump's "Remain in Mexico" border policy.
In two cases late last year (2022) Matthew Kacsmaryk ruled that anti-LGBTQ discrimination was permissible in heath care and struck down a rule that had promised confidentiality to teens who sought birth control from federally funded family planning programs.
Both lawsuits happen to have been filed by former Texas solicitor general Jonathan Mitchell, the architect of the state's 6-week abortion ban and its "bounty hunter" enforcement mechanism. ...
• (2023-04-08, https://www.ctvnews.ca/world/abortion-pill-order-latest-contentious-ruling-by-texas-judge-1.6347554) "Abortion pill order latest contentious ruling by Texas judge." A Texas judge who sparked a legal firestorm with an unprecedented ruling halting approval of the nation's most common method of abortion is a former attorney for a religious liberty legal group with a long history pushing conservative causes.
U.S. District Judge Matthew Matthew Kacsmaryk - an appointee of former President Donald Trump - on Friday (2023-04-07) ordered a hold on federal approval of mifepristone in a decision that overruled decades of scientific approval.
Matthew Kacsmaryk's ruling, - which doesn't take immediate effect, - came practically at the same time that U.S. District Judge Thomas O. Rice - an appointee of former President Barack Obama - essentially ordered the opposite in a different case in Washington.
The split likely puts the issue on an accelerated path to the U.S. Supreme Court.
Matthew Kacsmaryk - a former federal prosecutor and lawyer for the conservative First Liberty Institute - was confirmed in 2019 over fierce opposition by Democrats over his record opposing LGBTQ rights.
Matthew Kacsmaryk was among more than 230 judges installed to the federal bench under Donald Trump as part of a movement by the Republican president and Senate conservatives to shift the American judiciary to the right.
Matthew Kacsmaryk is the sole district court judge in Amarillo - a city in the Texas panhandle - ensuring that all cases filed there land in front of him.
And since taking the bench, Matthew Kacsmaryk has ruled against the Biden administration on several other issues, including immigration and LGBTQ protections.
Interest groups of all kinds have long attempted to file lawsuits before judges they see as friendly to their points of view.
But the number of conservative lawsuits filed in Amarillo, Texas has spawned accusations of "judge shopping" or that right-wing plaintiffs are seeking out Matthew Kacsmaryk because they know they'll get a sympathetic ear.
"Why are all these cases being brought in Amarillo if the litigants who are bringing them are so confident in the strength of their claims?
It's not because Amarillo is convenient to get to," said University of Texas law professor Stephen Vladeck.
"I think it ought to alarm the judges themselves, that litigants are so transparently and shamelessly funneling cases to their courtroom." The Justice Department quickly appealed Matthew Kacsmaryk's decision to the 5th U.S. Circuit Court of Appeals.
And for now, the drug that the Food and Drug Administration approved in 2000 appeared to remain immediately available in the wake of the conflicting rulings in Texas and Washington.
Mifepristone blocks the hormone progesterone in the body and is used with the drug misoprostol to end pregnancy within the first 10 weeks.
The lawsuit in the Texas case was filed by the Alliance Defending Freedom, which was also involved in the Mississippi case that led to Roe v. Wade being overturned.
Legal experts warned of questionable arguments and factual inaccuracies in the suit for months, but Matthew Kacsmaryk essentially agreed with all the plaintiffs' major points, including their contention the FDA didn't adequately review mifepristone's safety.
Medical groups, by contrast, point out mifepristone has been used by millions of women over the past 23 years, and complications occur at a lower rate than with other routine procedures like wisdom teeth removal and colonoscopies.
During confirmation hearings before he took the bench, Matthew Kacsmaryk told lawmakers it would be "inappropriate" for a judge to allow their religious beliefs to impact a matter of law.
Matthew Kacsmaryk pledged to "faithfully apply all Supreme Court precedent." "As a judicial nominee, I don't serve as as a legislator.
I don't serve as an advocate for counsel.
I follow the law as it is written, not as I would have written it," Matthew Kacsmaryk said at the time.
Before the abortion pill case, Matthew Kacsmaryk was at the center of a legal fight over Donald Trump's "Remain in Mexico" policy, which required tens of thousands of migrants seeking asylum to wait in Mexico for hearings in U.S. immigration court.
In 2021, Matthew Kacsmaryk ordered that the policy be reinstated in response to a lawsuit filed by the states of Texas and Missouri.
The U.S. Supreme Court overruled him and said that the Biden administration could end the policy, which it did last August.
But in 2022-12 Matthew Kacsmaryk ruled that the administration failed to follow federal rulemaking guidelines when terminating the practice, an issue that the Supreme Court didn't address.
Matthew Kacsmaryk has also ruled that allowing minors to obtain free birth control without parental consent at federally funded clinics violated parental rights and Texas law.
In other cases, Matthew Kacsmaryk has ruled that the Biden administration wrongly interpreted part of the Affordable Care Act as prohibiting health care providers from discriminating against people because of their sexual orientation or gender identity.
And Matthew Kacsmaryk sided with Texas in ruling against Biden administration guidance that said employers can't block workers from using a bathroom consistent with their gender identity.
In another case - brought by states challenging a Department of Labor rule - the Justice Department recently tried to get the case moved out of Matthew Kacsmaryk's district, writing in a court filing that "there is no apparent reason - other than judge shopping" that explains why the lawsuit was filed in Amarillo.
In denying the bid to move the case, Matthew Kacsmaryk wrote that the law "does not require the Court to guess as to Plaintiffs' subjective motivations for choosing" to file there.
Matthew Kacsmaryk's decisions have been "consistent with what a lot of conservatives were hoping for, and a lot of progressives were fearful of," said Daniel Bennett, an associate professor at John Brown University in Arkansas, who wrote a book on the conservative Christian legal movement.
"This is not a judge who's necessarily going to be riding the fence." Matthew Kacsmaryk's detractors said his past writings and legal work revealed extremist views and animus toward gay and transgender people.
In articles before being nominated, Matthew Kacsmaryk wrote critically of the Supreme Court's Roe v. Wade decision that established a nationwide right to an abortion and the Obergefell decision that legalized same-sex marriage nationally.
In 2015, Matthew Kacsmaryk slammed an effort to pass federal gender identity and sexual orientation protections, writing that doing so would "give no quarter to Americans who continue to believe and seek to exercise their millennia-old religious belief that marriage and sexual relations are reserved to the union of one man and one woman." A year later (2016) Matthew Kacsmaryk signed a letter that quoted another article as describing the "belief that one is trapped in the body of the wrong sex" as a "fixed, irrational belief" that is "appropriately described as a delusion." Matthew Kacsmaryk's defenders say he has been unfairly maligned.
Mike Davis - founder of the Article III Project, a conservative judicial advocacy group - said Matthew Kacsmaryk has shown no evidence of bias on the bench.
Mike Davis noted that Matthew Kacsmaryk was deemed "qualified," by the American Bar Association, which means he satisfied what the group describes as "very high standards with respect to integrity, professional competence and judicial temperament." "These allegations that Matthew Kacsmaryk is biased are completely unfounded and they unfairly conflate Matthew Kacsmaryk's legal advocacy with bigotry," Mike Davis said.
"These Democrat politicians are sending a message to Christians and other people of faith that they are not allowed in the public square." Before joining the bench, Matthew Kacsmaryk worked as an assistant U.S. attorney in Texas and was involved in such cases as the prosecution of Khalid Ali-M Aldawsari, the former Texas Tech University student from Saudi Arabia convicted in a failed bomb plot.
In 2014, Matthew Kacsmaryk joined the First Liberty Institute, which calls itself the "largest legal organization in the nation dedicated exclusively to defending religious liberty for all Americans." Matthew Kacsmaryk noted during his confirmation process that the group has represented all faiths.
Among the litigants Matthew Kacsmaryk defended as the institute's deputy general counsel was an Oregon bakery that refused to provide a cake for a same sex-couple's wedding.
"Obviously, Matthew Kacsmaryk's decisions have been really disappointing to progressives and left-leaning folks and been very pleasing to those on the right," Daniel Bennett said.
"But that's kind of the nature of our judicial branch right now, especially with these hot-button issues."
• (2023-04-15, https://www.commondreams.org/news/kacsmaryk-abortion-law-review-article) "'He Needs to Be Investigated': Abortion Case Judge Potentially Hid Law Review Article From Senate.
"A functioning Senate Judiciary Committee could investigate this," said one critic of Judge Matthew J. Kacsmaryk." Calls for an investigation into Judge Matthew J. Kacsmaryk mounted Saturday (2023-04-15) after The Washington Post revealed that the U.S. judge behind a temporarily blocked ruling against an abortion medication may have taken his name off of a controversial law review article as he sought a nomination to the federal bench from then-President Donald Trump (https://www.washingtonpost.com/politics/2023/04/15/matthew-kacsmaryk-law-review/).
In 2017-02 Matthew J. Kacsmaryk was deputy general counsel for the Christian conservative legal group First Liberty Institute, and sent an application to the Federal Judicial Evaluation Committee, established by U.S. Senators John Cornyn and Ted Cruz - both Texas Republicans - to vet potential nominees from their state.
Matthew J. Kacsmaryk was interviewed by the committee in March (2017-03), the two senators in April (2017-04), and White House and Justice Department offices in May (2017-05).
Donald Trump nominated Matthew J. Kacsmaryk to the U.S. District Court for the Northern District of Texas in September (2017-09) - the same month that the journal Texas Review of Law and Politics, which Matthew J. Kacsmaryk led as a University of Texas a law student, published "The Jurisprudence of the Body" - an article criticizing Obama administration protections for transgender patients and people seeking abortions, with First Liberty Institute lawyers Justin Butterfield and Stephanie Taub listed as the sole authors.
Matthew J. Kacsmaryk's nomination was sent back to the White House twice, but Donald Trump renominated him both times and the judge was eventually confirmed by Senate Republicans in 2019-06.
Although judicial nominees are required to disclose any publication with which they are associated, the article is never mentioned in the questionnaire that Matthew J. Kacsmaryk filled out for the Senate Judiciary Committee.
When Matthew J. Kacsmaryk initially submitted a draft of the article to the journal in early 2017, Justin Butterfield and Stephanie Taub's names did not appear anywhere, including in the footnotes, The Washington Post reported.
On 2017-04-11 - a week after he was interviewed by the GOP senators - Matthew J. Kacsmaryk, whose initials are MJK, emailed an editor an updated version and attached a file titled "MJK First Draft." Later that month (2017-04) Matthew J. Kacsmaryk, wrote in an email that after consulting with the editor in chief, "For reasons I may discuss at a later date, First Liberty Institute attorneys Justin Butterfield and Stephanie Taub will co-author the aforementioned article." According to The Washington Post: "Matthew J. Kacsmaryk did not respond to a request for comment.
A spokesman for First Liberty Institute, Hiram Sasser, said that Matthew J. Kacsmaryk's name had been a 'placeholder' on the article and that Matthew J. Kacsmaryk had not provided a 'substantive contribution.' Aaron Reitz, who was the journal's editor in chief at the time and is now a deputy to Texas Attorney General Ken Paxton (R-TX), said Matthew J. Kacsmaryk had been 'our chief point of contact during much of the editing' and 'was the placeholder until final authors were named by First Liberty Institute.' On Saturday (2023-04-15) - after this story was first published - Hiram Sasser provided an email showing that Stephanie Taub, one of the people listed as an author on the published article, was involved in writing an early draft.
But one former review editor familiar with the events said there was no indication that Matthew J. Kacsmaryk had been a 'placeholder,' adding that this was the only time during their tenure at the law review that they ever saw author names swapped.
The former editor, who spoke on the condition of anonymity out of fear of reprisal, provided emails and several drafts of the article." Justin Butterfield and Stephanie Taub - who still work at First Liberty Institute - did not respond to requests for comment, but Hiram Sasser told The Washington Post that "Matthew appears to have not gotten to the project so Stephanie decided to do a first draft that Justin edited." "It appears Matthew provided some light edits," Hiram Sasser added.
After the article was published, "Hiram Sasser sent what he said were emails showing that Stephanie Taub, who was then associate counsel, was involved in writing the article as early as 2016-12," The Washington Post reported.
"She sent an outline to Matthew J. Kacsmaryk, according to the emails provided by First Liberty Institute, and then a first draft one month later." As The Washington Post noted: "When Matthew J. Kacsmaryk requested the authorship switch, the editor familiar with the events said they raised the issue with Aaron Reitz, the law review's editor in chief.
The lower-ranking editor asked why Matthew J. Kacsmaryk was making the request.
Aaron Reitz smiled, the editor recalled, then said, 'You'll see.' Aaron Reitz did not address the exchange with the editor in his statement to The Washington Post.
But he said that "because of their work on the article, Mr. Justin Butterfield and Ms. Stephanie Taub rightfully received credit as authors.'" As a judge, Matthew J. Kacsmaryk has issued key decisions on both reproductive and trans rights.
Earlier this month (2023-04), Matthew J. Kacsmaryk struck down the U.S. Food and Drug Administration's 2000 approval of mifepristone - one of two drugs often taken in tandem for abortions - though his "junk science" ruling was temporarily halted by the U.S. Supreme Court on Friday (2023-04-14).
In response to the revelations Saturday (2023-04-15) Congressman Ted Lieu (D-CA) urged Matthew J. Kacsmaryk to step down, tweeting: "Why did Judge Matthew J. Kacsmaryk mislead the American people during his confirmation hearing about his abortion views?
Because he knew he wouldn't be confirmed if people found out he was a religious zealot.
Judge Matthew J. Kacsmaryk made a mockery of the confirmation process and must resign." U.S. Representative Daniel Goldman (D-NY) - an attorney who served as lead counsel in Donald Trump's first impeachment trial - called for a probe: "The judge (Matthew J. Kacsmaryk) hand-picked by the GOP to enjoin mifepristone withdrew his name from a law review article denouncing medication abortion during his confirmation process - and did not disclose the article.
He needs to be investigated." Federal judges serve lifetime appointments unless they retire or are removed from the bench - which requires being impeached by the U.S. House of Representatives and then convicted by the U.S. Senate.
"Unless there is some really surprising and persuasive innocent explanation for the sudden authorship swap, this is grounds for impeachment and removal," New York University School of Law professor Christopher Jon Sprigman said of Matthew J. Kacsmaryk.
Given that the House is currently controlled by Republicans, the reporting provoked some calls for a probe by the Senate Judiciary Committee, which is chaired by Senator Dick Durbin (D-IL) - who has openly criticized Matthew J. Kacsmaryk's mifepristone ruling, and this week pledged to soon hold a hearing on "the devastating fallout" since the U.S. Supreme Court overruled Roe v. Wade last June (2022-06).
"A functioning Senate Judiciary Committee could investigate this," declared The Nation's Jeet Heer.
Drexel University Thomas R. Kline School of Law professor and reproductive rights activist David S. Cohen agreed, arguing: "The Senate Judiciary Committee needs to call him (Matthew J. Kacsmaryk) in to testify and explain.
Now." Alex Aronson - a former chief counsel to Senator Sheldon Whitehouse (D-RI), who questioned Matthew J. Kacsmaryk during his confirmation hearing - told The Washington Post that not disclosing such an article is "unethical" and raises concerns about "the candor and honesty of the nominee." "The Senate Judiciary questionnaire requires nominees to disclose all 'published materials you have written or edited,'" Alex Aronson tweeted.
"It's not a close call.
Matthew J. Kacsmaryk needed to disclose this article he ghostwrote.
What else did he (Matthew J. Kacsmaryk) bury?"
• (2023-04-15, https://www.motherjones.com/politics/2023/04/judge-who-blocked-abortion-drug-did-not-disclose-controversial-article/) "Judge Who Blocked Abortion Drug Did Not Disclose Controversial Article.
The article argued that religious judges "cannot use their pens to prescribe or dispense abortifacient drugs designed to kill unborn children." (An abortifacient - "that which will cause a miscarriage;" from Latin: "abortus" "miscarriage" and "faciens" "making" - is a substance that induces abortion.
This is a nonspecific term which may refer to any number of substances or medications, ranging from herbs to prescription medications.
• https://en.wikipedia.org/wiki/Abortifacient) In 2017, Matthew Kacsmaryk - then deputy general counsel at the right-wing First Liberty Institute - criticized protections for transgender people and those seeking abortions in a draft law review article.
The Obama administration, Matthew J. Kacsmaryk wrote, was ignoring doctors who, for religious reasons, "cannot use their scalpels to make female what God created male" and "cannot use their pens to prescribe or dispense abortifacient drugs designed to kill unborn children." What's unusual is what happened next.
The Washington Post reports that Matthew J. Kacsmaryk - now the federal judge issued who issued the temporarily-stayed decision to ban the abortion drug mifepristone across the country - asked an editor at the law journal a few months later to remove his name from the article because of "reasons I may discuss at a later date." Instead, Matthew J. Kacsmaryk asked the journal to put the names of two of his colleagues on the article.
At the time, Kacsmaryk was being considered for a judgeship.
As The Washington Post explains: "As part of that process, he was required to list all of his published work on a questionnaire submitted to the Senate Judiciary Committee, including 'books, articles, reports, letters to the editor, editorial pieces, or other published material you have written or edited.' The article - titled "The Jurisprudence of the Body" - was published in 2017-09 by the Texas Review of Law and Politics, a right-leaning journal that Matthew J. Kacsmaryk had led as a law student at the University of Texas.
But Matthew J. Kacsmaryk's role in the article was not disclosed, nor did Matthew J. Kacsmaryk list the article on the paperwork he submitted to the Senate in advance of confirmation hearings, in which Kacsmaryk's past statements on LGBT issues became a point of contention.
Matthew J. Kacsmaryk did not respond to requests for comment from The Washington Post.
A spokesman for First Liberty Institute told the paper that Matthew J. Kacsmaryk's name was "placeholder" on the article, and that the now-judge did not make a "substantive contribution." But a former editor at the journal said there was no sign that Matthew J. Kacsmaryk was being used as a "placeholder." The editor had never seen the name of an author changed out before, according to The Washington Post.
Adam Charnes - who worked on judicial appointments during the George W. Bush administration - called Kacsmaryk's decision not to disclose the article to the Senate "problematic" and "a little shady." Alex Aronson - the former chief counsel to Senator Sheldon Whitehouse (D-RI) - said it raised questions about the judge's "candor and honesty." Matthew J. Kacsmaryk now serves in the Northern District of Texas, where he is the only judge in Amarillo, Texas.
As a result, any suit filed in Amarillo automatically goes to Matthew J. Kacsmaryk.
That has made it easy for conservative lawyers to ensure that they get cases assigned to an unusually sympathetic judge.
Like other federal judges, Matthew J. Kacsmaryk enjoys a lifetime appointment.
At 46, Matthew J. Kacsmaryk may be on the bench for decades to come.
Read the full story from The Washington Post here (https://www.washingtonpost.com/politics/2023/04/15/matthew-kacsmaryk-law-review/).
• (2023-04-15, https://www.washingtonpost.com/politics/2023/04/15/matthew-kacsmaryk-law-review/) "The controversial article Matthew Kacsmaryk did not disclose to the Senate.
The judge who delivered a high-stakes abortion pills ruling last week removed his name from a law review article during his judicial nomination process, emails show." As a lawyer for a conservative legal group, Matthew Kacsmaryk in early 2017 submitted an article to a Texas law review criticizing Obama-era protections for transgender people and those seeking abortions.
The Obama administration, the draft article argued, had discounted religious physicians who "cannot use their scalpels to make female what God created male" and "cannot use their pens to prescribe or dispense abortifacient drugs designed to kill unborn children." But a few months after the piece arrived, an editor at the law journal who had been working with Matthew Kacsmaryk received an unusual email: Citing "reasons I may discuss at a later date," Matthew Kacsmaryk, who had originally been listed as the article's sole author, said he would be removing his name and replacing it with those of two colleagues at his legal group, First Liberty Institute, according to emails and early drafts obtained by The Washington Post.
What Matthew Kacsmaryk did not say in the email was that he had already been interviewed for a judgeship by his state's two senators and was awaiting an interview at the White House.
As part of that process, Matthew Kacsmaryk was required to list all of his published work on a questionnaire submitted to the Senate Judiciary Committee, including "books, articles, reports, letters to the editor, editorial pieces, or other published material you have written or edited." The article - titled "The Jurisprudence of the Body" - was published in 2017-09 by the Texas Review of Law and Politics, a right-leaning journal that Matthew Kacsmaryk had led as a law student at the University of Texas.
But Matthew Kacsmaryk's role in the article was not disclosed, nor did Matthew Kacsmaryk list the article on the paperwork he submitted to the Senate in advance of confirmation hearings in which Matthew Kacsmaryk's past statements on LGBT issues became a point of contention.
Now, six years later (2023), Matthew Kacsmaryk sits as a U.S. federal judge in Amarillo, Texas.
Matthew Kacsmaryk's strong ideological views have grabbed the country's attention, after his ruling last week (2023-04) that sought to block government approval of a key drug used in more than half of all abortions in the country - an opinion that invoked antiabortion-movement rhetoric and which some medical experts have said relied on debunked claims that exaggerate potential harms of the drug.
Matthew Kacsmaryk did not respond to a request for comment.
A spokesman for First Liberty Institute, Hiram Sasser, said that Matthew Kacsmaryk's name had been a "placeholder" on the article and that Matthew Kacsmaryk had not provided a "substantive contribution." Aaron Reitz, who was the journal's editor in chief at the time and is now a deputy to Texas Attorney General Ken Paxton (R), said Matthew Kacsmaryk had been "our chief point of contact during much of the editing" and "was the placeholder until final authors were named by First Liberty Institute." On Saturday (2023-04-15) - after this story was first published - Hiram Sasser provided an email showing that Stephanie Taub - one of the people listed as an author on the published article - was involved in writing an early draft.
But one former review editor familiar with the events said there was no indication that Matthew Kacsmaryk had been a "placeholder," adding that this was the only time during their tenure at the law review that they ever saw author names swapped.
The former editor - who spoke on the condition of anonymity out of fear of reprisal - provided emails and several drafts of the article.
The circumstances surrounding the article's authorship raise questions about whether a judicial nominee was seeking to duck scrutiny from a process designed to ensure that judges are prepared to interpret the law without personal bias, said lawyers who worked on judicial nominations in Republican and Democratic administrations - speaking hypothetically and not specifically about Matthew Kacsmaryk.
Adam H. Charnes, who worked on judicial nominations while the principal deputy in the Justice Department's Office of Legal Policy under President George W. Bush, said he would not have advised potential nominees to withdraw articles they had written or to publish them under others' names.
"I'm pretty sure the Senate would expect you to produce something like that," Adam Charnes said.
The scenario "strikes me as problematic," Adam Charnes said - and, he added, "a little shady." The Senate Judiciary Committee's questionnaire requires nominees to disclose any publication with which they are associated, regardless of whether they are formally listed as authors, said Alex Aronson - who was a former chief counsel to Senator Sheldon Whitehouse (D-RI), and led judicial nominations for the senator.
Sheldon Whitehouse questioned Matthew Kacsmaryk during his confirmation hearing.
"That would certainly seem to encompass a published article that a nominee effectively ghostwrote," Alex Aronson said.
To leave such a publication off the questionnaire, Alex Aronson added, is "unethical" and raises concerns about "the candor and honesty of the nominee." The Washington Post also interviewed another Republican lawyer who worked on judicial nominations in the George W. Bush White House, at the recommendation of a friend of Matthew Kacsmaryk's, who was told about this story ahead of publication.
That lawyer, Mike Davis, said the situation did not raise any ethical concerns.
"A judicial nominee is not required to disclose draft legal writings under the Senate Judiciary Committee's rules or practice," said Mike Davis, who runs a nonprofit entity that advocates for conservative judges.
"It looks like Matthew Kacsmaryk didn't want to have any political controversy," Mike Davis added.
"It's still within the rules." When Matthew Kacsmaryk submitted the article in early 2017, he was deputy general counsel for First Liberty Institute.
By early April (2017-04), Matthew Kacsmaryk was well on his way to a judicial nomination.
Matthew Kacsmaryk was interviewed by members of the Federal Judicial Evaluation Committee in Dallas on March 3 (2017-03-03), then flew to Washington, D.C. to meet with Republican Senators Ted Cruz and John Cornyn - both of Texas, on April 3 (2017-03-03), according to a timeline Matthew Kacsmaryk submitted to the Senate Judiciary Committee.
One week later, on April 11 (2017-03-11), Matthew Kacsmaryk emailed an editor with a draft of the article, noting that Matthew Kacsmaryk had made one small change, attaching a file titled "MJK First Draft." ("MJK" are Matthew Kacsmaryk's initials.) "I modified the last sentence in the opening paragraph of section III," Matthew Kacsmaryk wrote.
At the end of the message Matthew Kacsmaryk added, "Keep fighting the good fight!" In late April (2017-04) - about a month before Matthew Kacsmaryk traveled to Washington, D.C. to meet with lawyers from Trump's White House Counsel's Office - Matthew Kacsmaryk informed his editor that after consulting with the editor in chief, he would be replacing his name with two others'.
"For reasons I may discuss at a later date, First Liberty Institute attorneys Justin Butterfield and Stephanie Taub will co-author the aforementioned article," Matthew Kacsmaryk said, according to an email obtained by The Washington Post.
Justin Butterfield and Stephanie Taub - who still work at First Liberty Institute - did not respond to requests for comment.
Before this Washington Post story was published, Hiram Sasser said he had emails proving Matthew Kacsmaryk was not the actual author, but declined to share them with The Washington Post.
"Matthew appears to have not gotten to the project so Stephanie decided to do a first draft that Justin edited," Hiram Sasser wrote in a statement.
"It appears Matthew provided some light edits." After publication, Hiram Sasser sent what he said were emails showing that Stephanie Taub - who was then associate counsel - was involved in writing the article as early as 2016-12.
Stephanie Taub sent an outline to Matthew Kacsmaryk, according to the emails provided by First Liberty Institute, and then a first draft one month later (2017-01).
"Here is a first draft of the article," Stephanie Taub wrote on 2017-01-17, according to emails provided by First Liberty Institute.
"Please let me know if you'd like more work on this or if you've got it from here." Neither Stephanie Taub nor Justin Butterfield's name appears in the draft originally submitted by Matthew Kacsmaryk, including in the footnotes, according to emails and documents provided by the editor.
When Matthew Kacsmaryk requested the authorship switch, the editor familiar with the events said they raised the issue with Aaron Reitz, the law review's editor in chief.
The lower-ranking editor asked why Matthew Kacsmaryk was making the request.
Aaron Reitz smiled, the editor recalled, then said, "You'll see." Aaron Reitz did not address the exchange with the editor in his statement to The Washington Post.
But Aaron Reitz said that "because of their work on the article, Mr. Justin Butterfield and Ms. Stephanie Taub rightfully received credit as authors." Even after Justin Butterfield and Stephanie Taub were designated the authors, Matthew Kacsmaryk remained involved, the emails show, offering additional minor edits.
The final version is almost identical to the one submitted under Matthew Kacsmaryk's name.
Trump nominated Matthew Kacsmaryk to the federal bench in 2017-09 - the same month the article "The Jurisprudence of the Body" was published.
During his confirmation hearing that December (2017-12), Democratic senators questioned Matthew Kacsmaryk extensively on his views on LGBT rights and abortion - issues at the heart of the article Matthew Kacsmaryk had submitted to the law journal.
The journal article argues against a 2016 U.S. Department of Health and Human Services (HSS) rule forbidding doctors to discriminate against patients who seek gender-affirming care or pregnancy termination.
The rule from the Obama administration, the article says, should contain a "conscientious objector" exception.
A law review article is exactly the kind of material the Senate Judiciary Committee is trying to gather in the judicial confirmation process, several people said, because it provides a sense of the judge's personal opinions.
While it is unfair to judge a nominee on work done on behalf of a client, said Adam Charnes, the Republican who worked under Bush, "a law review article is different." "Those are the author's views," Adam Charnes said - exactly what the Senate is trying to evaluate.
Matthew Kacsmaryk has defended his ability to be impartial in his work.
"As a judge, I'm no longer in the advocate role," Matthew Kacsmaryk said during his confirmation hearing.
"I'm in the role of reading and applying with all good faith whatever Supreme Court and 5th Circuit precedent is binding." Asked whether transgender Americans should have equal protections, Matthew Kacsmaryk told the Senate Judiciary Committee that they should have "what the law provides." Many of Matthew Kacsmaryk's recent decisions have been wins for the right - including two that struck down new Biden administration protections for transgender people.
One decision, issued late last year (2022), involved the same issues raised in the journal article, "The Jurisprudence of the Body." Matthew Kacsmaryk sided with doctors represented by America First Legal Foundation - set up by former Trump White House adviser Stephen Miller, who challenged HHS guidelines designed to protect transgender patients against discrimination.
In his ruling, Matthew Kacsmaryk said that under Biden, HHS had wrongly interpreted a provision of Obama's Affordable Care Act and had misapplied the landmark Supreme Court case extending workplace protections to gay and transgender individuals.
The judge credited the doctors' position that they should in certain situations still be able to refuse hormonal therapy and other forms of gender-affirming care for transgender patients.
• (2023-04-21, https://truthout.org/articles/judge-in-abortion-pill-case-didnt-disclose-interview-disparaging-lgbtq-people/) "Judge in Abortion Pill Case Didn't Disclose Interview Disparaging LGBTQ People.
Matthew J. Kacsmaryk went on Christian talk radio twice in 2014 to spread bunk conspiracy theories about LGBTQ people." Texas federal judge Matthew Kacsmaryk - who recently ruled to suspend the Food and Drug Administration's (FDA) approval of the abortion drug mifepristone - failed to disclose two interviews he did prior to his confirmation in which he spread dangerous lies about LGBTQ people, despite requirements for federal judicial nominees to do so.
Twice in 2014, Donald Trump-nominated Matthew Kacsmaryk appeared on a Christian talk radio show with "a biblical constitutional worldview" named Chosen Generation.
Matthew Kacsmaryk was brought on to talk about the completely unproven conspiracy theory, popular among Republicans, that the supposed "homosexual agenda" is taking over the government and silencing Christians.
The radio appearances were first reported by CNN.
These interviews, in which Matthew Kacsmaryk disparaged LGBTQ people and contraception for supposedly contributing to a "sexual revolution," have never been disclosed by the judge even though it is required for federal judicial nominees to disclose things that they have written or said in public in order for lawmakers and the public to properly assess judges.
A spokesperson for Senate Judiciary Committee Chair Senator Dick Durbin (D-IL) confirmed to CNN that documents filed during Matthew Kacsmaryk's nomination process - which began in 2017 - did not include the interviews.
Matthew Kacsmaryk told the publication in a statement that he didn't disclose the interviews because he forgot about them and that, after seeing transcripts of the interviews, he (Matthew Kacsmaryk) stands by what he said.
In the interviews, Matthew Kacsmaryk claimed that the LGBTQ community is working with the government to silence Christianity - a message originating from fringe right-wing groups that have long sought to erode the rights of LGBTQ people, using "religious freedom" as a bludgeon.
"I just want to make very clear, people who experience a same-sex attraction are not responsible individually or solely for the atmosphere of the sexual revolution," Matthew Kacsmaryk said in an appearance from 2014-02.
"You know it.
It's a long time coming.
It came after no-fault divorce.
It came after we implemented very permissive policies on contraception.
The sexual revolution has gone through several phases.
We just happen to be at the phase now where same sex marriages is at the fore." Later, the judge (Matthew Kacsmaryk) agreed when the host said that the government is aiming to treat opponents of same sex marriage as "hostile" enemies, similarly to al-Qaeda.
"That is very much in vogue now in the federal government to characterize opposition to same sex marriage and related issues as irrational prejudice at best and a potential hate crime at worse," Matthew Kacsmaryk said.
In an appearance later that year (2014), Matthew Kacsmaryk parroted similarly cruel anti-LGBTQ arguments, claiming that the Obama administration was eroding religious rights by granting protections to LGBTQ people, Matthew Kacsmaryk also said that being gay is "a lifestyle" and suggested that people who experience "same sex attraction" should be "willing to live celibate." The omission of the interviews seems to indicate a concerning pattern of Matthew Kacsmaryk covering up his bigoted views on LGBTQ people - who are now under attack by Republicans across the country, due in large part to the same network of judicial activists responsible for installing Kacsmaryk and numerous other conservative judges into powerful positions - including every sitting right-wing judge on the U.S. Supreme Court.
Last week (2023-04), The Washington Post uncovered that Matthew Kacsmaryk had submitted an article to a Texas law review in 2017 riddled with lies about trans people and abortion.
Matthew Kacsmaryk's article attacked an Obama administration decision to protect trans people and abortion seekers, saying that the administration was yanking rights away from religious health providers who "cannot use their scalpels to make female what God created male" and "cannot use their pens to prescribe or dispense abortifacient drugs designed to kill unborn children." Then, in what legal experts said was an unusual and suspicious move, Matthew Kacsmaryk had his name removed from the article, and replaced with the names of two of his colleagues, in anticipation of his nomination to his (Matthew Kacsmaryk's) current position as a district judge.