Dem
51
GOP
49
Clarence Thomas isn't the only member of the federal judiciary with questionable behavior in his past. Thanks to the mifepristone decision, reporters are looking under every rock for dirt on Judge Matthew Kacsmaryk. And the folks at The Washington Post, in addition to their work on Clarence Thomas, have just reported on a skeleton it found in Kacsmaryk's closet.
The matter is a little bit inside baseball, but before he was a judge, Kacsmaryk was a right-wing-think-tank activist who did the sort of things that you do when you work at a think tank, like write scholarly articles. And during the Obama years, he penned a law review article that savaged gender-reassignment surgery ("[doctors] cannot use their scalpels to make female what God created male") and that lambasted abortion pills ("[doctors] cannot use their pens to prescribe or dispense abortifacient drugs designed to kill unborn children").
Naturally, during his confirmation hearings, Kacsmaryk offered up the usual platitudes about calling balls and strikes and following the law and not letting his personal views interfere with his jurisprudence. Nobody really believed it then, but the news of this law review article coupled with the mifespristone decision means that an argument can be made that the Judge perjured himself. On top of that, and making things worse, is that when he was nominated to the federal courts by Donald Trump, Kacsmaryk arranged to have his name removed from the article, to be replaced by the names of two of his colleagues. That adds to the argument for perjury, as part of the confirmation process is that judges have to disclose everything they have written.
The odds that Kacsmaryk is sanctioned in any way for this are roughly equal to the odds of your winning the lottery. Without buying an actual ticket. Still, it contributes to the already overwhelming perception (as indicated by polls) that the ruling was governed by politics and not by the law. And the more that it stinks to high heaven, the more inclined Chief Justice John Roberts (and possibly one or more of his colleagues) will be to reverse the ruling just to preserve the reputation of the courts. In other words, we have the interesting situation that a decision made for political reasons could well be overturned for political reasons. That's how it goes these days, sometimes. (Z)