by Don Mayer
Donald Trump’s judicial chickens have come home to roost, and they are laying some perfectly legal but horribly misshapen eggs. Trump, with the help of Leonard Leo and the Federalist Society, and then Senate Majority Leader Mitch McConnell, approved a record number of federal judges, not only to the Supreme Court (Kavanaugh, Gorsuch, and Barrett), but to federal circuit and district courts.
Trump departed from a long tradition of listening to the American Bar Association’s recommendations as to who is actually qualified for these demanding and intellectually rigorous judgeships. More than a few of his appointees were rated as unqualified by the ABA.
For a 2019 readout on a number of judges (and Justices) pushed through by Trump and McConnell, see this post from Huffington, Unqualified and Ideological: A Guide to Trump’s Worst Judges.
For individuals and organizations adamantly opposed to abortion of any kind, or to LGBTQ rights of any kind, one of the main “go to” judges is Matthew Kacsmaryk, the sole federal district court judge in Amarillo, Texas.
“Forum shopping” is a venerable tradition among lawyers representing plaintiffs in federal or state court; every plaintiff wants a judge that is “sympathetic” to their cause. The right wing has found that filing in Kacsmaryk’s court for any of its favorite causes is almost a sure-fire bet.
The impact of Kacsmaryk’s decision to ban mifepristone –– a drug long approved by the FDA for what might be called chemically induced abortions –– extends far beyond the borders of Texas, and has national effect, even in states where abortion remains legal. (Reminder: Justice Alito’s opinion in Dobbs, over-ruling Roe v. Wade, essentially claimed that the question of abortion would be left to the states. Evidently, not so much.)
As Ruth Marcus of the Washington Post observed,
“In an opinion released Friday, Kacsmaryk invalidated the Food and Drug Administration’s 23-year-old approval of the abortion drug mifepristone and, for good measure, found that abortion medications cannot be sent by mail or other delivery service under the terms of an 1873 anti-vice law.”
“Even in states where abortion remains legal. Even though study after study has shown the drug to be safe and effective — far safer, for instance, than over-the-counter Tylenol. Even though — or perhaps precisely because — more than half of abortions in the United States today are performed with abortion medication.”
The Alliance for Hippocratic Medicine was formed in 2022 in Amarillo, presumably to bring lawsuits before Judge Kacsmaryk. But, given the Supreme Court’s fairly strict standards on “standing,” why would a non-profit organization be able to claim the kind of “tangible injury” that the Court has typically required to say that there is a “case or controversy” that needs judicial resolution?
As noted by Jonathan Adler in a blog on the Volokh Conspiracy, the standing issue is not the only procedural hurdle that Kacsmaryk let slide. As Adler notes, there are “at least four problems with the plaintiffs’ suit.”
- The plaintiffs’ theory of standing is irreconcilable with Supreme Court precedent.
- The statute of limitations has expired on plaintiffs’ challenge to the FDA’s approval of mifepristone. The plaintiffs claim that the FDA “constructively reopened” that approval in 2016, thus restarting the statute of limitations, but that’s clearly wrong.
- The plaintiffs did not exhaust their claims, even though a regulation explicitly required them to do so.
- Although the plaintiffs claim that the FDA’s actions are contrary to the Food, Drug, and Cosmetic Act (FDCA), the plaintiffs have failed to identify any particular provision of the FDCA that the FDA has actually violated.
Kacsmaryk ignored all of that to get the result that he was chosen to deliver. Of course, the FDA can appeal Kacsmaryk’s ruling, but that just puts it in the hands of the Fifth Circuit Court of Appeals. But that Court now has a growing reputation as the most “conservative” of the Circuit Courts.
Writing in The Guardian in 2021, David Smith noted that “one Fifth Circuit judge publicly mourned the “moral tragedy of abortion.” Another suggested that same-sex marriage “imperils civic peace”. A third tweeted negatively about Hillary Clinton using the hashtags #CrookedHillary, #basketofdeplorables and #Scandalabra.”
https://www.theguardian.com/law/2021/nov/15/fifth-circuit-court-appeals-most-extreme-us
“James Ho, Stuart Kyle Duncan and Cory Wilson are among six judges appointed by former president Donald Trump to the US court of appeals for the fifth circuit, skewing one of the most conservative – and influential – courts in America even further to the right.”
If many U.S. citizens are concerned that the federal courts have become politicized, they have their poster children in Kacsmaryk and the Fifth Circuit.
God save this nation and restore honorable courts to be in session.