RIGHT-LEANING KACSMARYK NOW LEGISLATING FROM THE BENCH
I suppose it is childish to be bothered by the rank hypocrisy of politicians, or to be disappointed at finding politicians wrapped in robes and salted into the federal judiciary. But when the “conservative” overhaul of the courts, decades in the making, ultimately results in the likes of U.S. District Judge Matthew J. Kacsmaryk, the travesty cannot go unremarked.
Since the 1960s, if not earlier, self-styled legal conservatives have been saying — with perfectly straight faces — that judges must not legislate from the bench. They carried copies of the Constitution around in their pockets and waved them as proof that the United States has three branches of government. Elected legislators make the laws. Elected presidents sign and execute the laws.
As for unelected judges: They should be as modest and unassuming as a crossing guard in a Mennonite village where all the horses are old and footsore. Judges don’t make the laws. They don’t execute the laws. They just read the laws, preferably with their lips moving and their hearts full of reverence, scanning patiently until the original intentions of the Founders take shape on the blank canvas of the judicial mind.
Was it all a lie? Of course it was, though folks have another word for it when they put a foot wrong in the stables around Amarillo, Tex.
Amarillo is where so-called conservatives have engineered a cynical judicial tyranny in the person of Kacsmaryk. Formerly an attorney for the First Liberty Institute, a right-wing Christian law firm, Kacsmaryk has written that Roman Catholic doctrine concerning marriage, family and sexuality — including a hard line against abortion and even contraception — should be codified in American law. I’m not sure where he came up with that, but it certainly was not from the Founding Fathers. “Can a free government possibly exist with the Roman Catholic religion?” John Adams mused to Thomas Jefferson. No, Jefferson opined: “In every country and in every age, the priest has been hostile to liberty.”
The beauty of Amarillo for the hypocrites of the right is that it’s home to just one federal judge. Therefore, lawsuits filed in Amarillo will not be assigned by lottery but will instead be heard, almost inevitably, by the judge in residence. Kacsmaryk.
Just how far he would venture into lawlessness was revealed when the Amarillo freelancer shrugged off all deference to the other branches of government to assert his personal power to undo approval of a medicine cleared for American patients some 20 years ago: mifepristone, used to induce miscarriages early in pregnancy and prescribed as part of the most common abortion procedure in the United States.
Opponents of abortion would prefer that mifepristone not be available to Americans. The antiabortion movement cannot achieve its ultimate aim as long as this carefully vetted, federally approved, widely available compound is on the market.
However, generations of judicial conservatives have taught us that the correct way of achieving such goals is through the legislative process. Elected lawmakers have placed responsibility for the approval of medicines with the Food and Drug Administration. The agency openly and transparently conducted a thorough review of mifepristone, and nothing learned from the millions of prescriptions written for the drug since then has undermined the agency’s approval.
Now that Congress won’t give abortion opponents what they want, all the bilge-wash concerning the Constitution is flushed away. It’s ever so much easier to visit the Judge Roy Bean of Amarillo, hundreds of dusty highway miles from the nearest FDA laboratory. This is called “judge shopping,” and it’s a demoralizing ploy no matter who engages in it, because it makes a mockery of the rule of law and turns citizens into cynics.
When he heard the case on March 15, Kacsmaryk was advised — by the antiabortion plaintiff! — that no judge in history had undone the FDA’s approval of a prescription drug. Undeterred, the Texas tyrant decided to be the first.
The Justice Department has appealed the ruling. It had little choice, given the usurpation of both executive and legislative authority. Congress has given authority over prescription medicines to the executive branch, not some Panhandle praetor. Now, the U.S. Court of Appeals for the 5th Circuit — another supposedly conservative institution — is called on to rebuke the runaway judge and assert the authority of the Constitution even in Amarillo. Otherwise, the job will fall to the Supreme Court.
Legislating from the bench: For more than half a century, this has been the rankest crime known to judicial conservatives, while the original intent of the Founders has been their highest virtue. By trampling over the virtue to wallow in the crime, Kacsmaryk has called the bluff of the entire right-leaning judicial branch: Put up, or shut up.