Judge Matthew Kacsmaryk, a district judge appointed by President Trump to the Northern District of Texas, has been the subject of serial invectives by Ian Millhiser of Vox, who calls him “the single worst villain in the United States of America that most people have never heard of.” The judge’s real offense is his background litigating religious liberty cases. As Ed Whelan points out, Kacsmaryk is consistently affirmed by the Fifth Circuit in cases Millhiser complains about. And the point of the latest onslaught against Kacsmaryk from Millhiser and others is an increasingly shameless campaign to bully conservative judges into changing their rulings. The charges would be laughable if they weren’t being taken seriously—not just by activists but also by journalists and a crusading senator who is willing to upend the rule of law to protect the abortion industry.
The abuse has escalated in recent days because Kacsmaryk is presiding over the Alliance for Hippocratic Medicine’s lawsuit challenging the FDA’s approval of the chemical abortion drugs mifepristone and misoprostol. Last week, Senator Ron Wyden attacked the judge in an extended tirade on the Senate floor. He called the judge a “lifelong right-wing activist.” Never mind that Kacsmaryk spent years as a federal prosecutor and was given the Attorney General’s Award for Excellence in 2013, when the Justice Department was led by none other than Eric Holder.
Kacsmaryk, Wyden charged, is “the most lawless judge in the country,” one engaged in what he called a “courtwashing scheme” to “give the appearance of judicial legitimacy to the outcomes that right-wing activists know they’re getting as soon as their cases show up on his docket.” “The awful reality,” he continued, is that this case from its inception has “been a rigged game all along.” Wyden also attacked the plaintiffs as “extreme anti-abortion groups and doctors.” The reality is that whether they prevail in court or not, these litigants are challenging one of the most controversial drugs ever approved by the FDA.
What is extreme is Senator Wyden’s rhetoric. That the Left loses its collective mind when the issue is abortion has already been demonstrated for many years. That phenomenon did not end with the overruling of Roe v. Wade last year by Dobbs v. Jackson Women’s Health Organization, as is visible by the fact that these attacks come before Kacsmaryk has even issued a ruling in the case before him.
Of course, Wyden is not merely making an anticipatory condemnation of a potential ruling, but attempting to intimidate a federal judge. Recall similar tactics at the hands of senators in the recent past. The current Senate majority leader, Chuck Schumer, stood in front of the Supreme Court in 2020 when another abortion case was being argued and threatened Justices Neil Gorsuch and Brett Kavanaugh, “You won’t know what hit you if you go forward with these awful decisions.” Less than a year earlier, Senator Sheldon Whitehouse made a veiled threat to restructure (i.e., pack) the Court if it did not rule his way in a Second Amendment case.
Senator Wyden has one-upped his colleagues with an even more dangerous threat: If Judge Kacsmaryk issues a disagreeable ruling, “ignore it.” “The FDA needs to keep this medication on the market without interruption regardless of what the ruling says. Doctors and pharmacies should go about their jobs like nothing has changed.” The senator even compared his stand to Abraham Lincoln’s approach to the Supreme Court’s notorious ruling in Dred Scott. The analogy is offensive, not to mention upside down. Dred Scott was one of the most egregiously wrong decisions in the Court’s history. In addition to being wrong on the law, no other precedent of the Court did more to assail humanitarian principles. In our day, Wyden’s own unbounded advocacy of abortion presents its own assault on human dignity. His call for judicial nullification makes him look more like a variation on John Calhoun than Abraham Lincoln.
Ten years ago, I criticized former New York Times Supreme Court correspondent Linda Greenhouse for a piece she wrote calling out Justice Anthony Kennedy as a results-driven activist in anticipation of a case the Supreme Court would hear challenging Oklahoma’s regulation of mifepristone. (The Court ultimately dismissed certiorari as improvidently granted in that case.) Greenhouse, a longtime donor to Planned Parenthood, is far from a balanced reporter, but her opinionated commentary now looks tame next to the vitriol spewed by the likes of Millhiser and some of the Senate’s most senior Democrats.
Perry Bacon was a bit late to this party when he made an appeal this week in the Washington Post for “Democratic politicians, left-leaning activist groups, newspaper editorial boards and other influential people and institutions . . . to start relentlessly blasting Republican-appointed judges,” including Kacsmaryk by name. He was up front about his advocacy of “shaming” as a tactic “to make Republican judges less conservative in their rulings.” Has he been paying attention over the past several decades? Or even over the past year, when intimidation tactics aimed at Supreme Court justices and their families escalated, with Justice Kavanaugh the target of an assassination attempt and threats to churches and pregnancy centers mounting?
It is the attempted shamers who are bringing shame upon themselves.