'He needs to be investigated': Abortion case judge potentially hid law review article from Senate

Calls for an investigation into Judge Matthew J. Kacsmaryk mounted Saturday 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.

In February 2017, 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. Sens. John Cornyn and Ted Cruz, both Texas Republicans, to vet potential nominees from their state. He was interviewed by the committee in March, the two senators in April, and White House and Justice Department offices in May.

Trump nominated Kacsmaryk to the U.S. District Court for the Northern District of Texas in September—the same month that the journal Texas Review of Law and Politics, which 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 lawyers Justin Butterfield and Stephanie Taub listed as the sole authors.

Kacsmaryk's nomination was sent back to the White House twice, but Trump renominated him both times and the judge was eventually confirmed by Senate Republicans in June 2019. Although judicial nominees are required to disclose any publication with which they are associated, the article is never mentioned in the questionnaire that Kacsmaryk filled out for the Senate Judiciary Committee.

When Kacsmaryk initially submitted a draft of the article to the journal in early 2017, Butterfield and Taub's names did not appear anywhere, including in the footnotes, the Post reported. On April 11, a week after he was interviewed by the GOP senators, Kacsmaryk—whose initials are MJK—emailed an editor an updated version and attached a file titled "MJK First Draft."

Later that month, Kacsmaryk, wrote in an email that after consulting with the editor in chief, "For reasons I may discuss at a later date, First Liberty attorneys Justin Butterfield and Stephanie Taub will co-author the aforementioned article."

According to the Post:

Kacsmaryk did not respond to a request for comment. A spokesman for First Liberty, Hiram Sasser, said that Kacsmaryk's name had been a "placeholder" on the article and that 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 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."

On Saturday, after this story was first published, 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 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.

Butterfield and Taub, who still work at First Liberty, did not respond to requests for comment, but Sasser told the 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," Sasser added.

After the article was published, "Sasser sent what he said were emails showing that Taub, who was then associate counsel, was involved in writing the article as early as December 2016," the Post reported. "She sent an outline to Kacsmaryk, according to the emails provided by First Liberty, and then a first draft one month later."

As the newspaper noted:

When Kacsmaryk requested the authorship switch, the editor familiar with the events said they raised the issue with Reitz, the law review's editor in chief. The lower-ranking editor asked why Kacsmaryk was making the request.

Reitz smiled, the editor recalled, then said, "You'll see."

Reitz did not address the exchange with the editor in his statement to the Post. But he said that "because of their work on the article, Mr. Butterfield and Ms. Taub rightfully received credit as authors."

As a judge, Kacsmaryk has issued key decisions on both reproductive and trans rights. Earlier this month, he 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.

In response to the revelations Saturday, Congressman Ted Lieu (D-Calif.) urged Kacsmaryk to step down, tweeting: "Why did Judge 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 Kacsmaryk made a mockery of the confirmation process and must resign."

U.S. Rep. Daniel Goldman (D-N.Y.), an attorney who served as lead counsel in Trump's first impeachment trial, called for a probe: "The judge 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 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 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 Sen. Dick Durbin (D-Ill.)—who has openly criticized Kacsmaryk's mifepristone ruling and this week pledged to soon hold a hearing on "the devastating fallout" since the U.S. Supreme Court overruledRoe v. Wade last June.

"A functioning Senate Judiciary Committee could investigate this," declaredThe 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 in to testify and explain. Now."

Alex Aronson, a former chief counsel to Sen. Sheldon Whitehouse (D-R.I.), who questioned Kacsmaryk during his confirmation hearing, told the 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,'" Aronson tweeted. "It's not a close call. Kacsmaryk needed to disclose this article he ghostwrote. What else did he bury?"

This post has been updated with information about emails that First Liberty Institute spokesperson Hiram Sasser shared with The Washington Post after the initial article was published.