Courts

Judge Kacsmaryk And The Case Of The Law Review Article That He Surely Didn't Intentionally Try To Conceal From The Senate

People randomly take their names off articles that they purport to solely author all the time, right?

By  
on
A businessman lifting the center of three cups and pointing

Keep your eye on the moving author!

Judge Matthew Kacsmaryk’s mifepristone ban has thrown reproductive freedom, the entire pharmaceutical industry, and basic civil procedure into disarray. The opinion’s conception of standing is so nonsensical that Samuel Alito had to step in and put a stop to it. Kacsmaryk’s effort to square-peg/round-hole his theology onto the American legal system underscores a certain amateur-hour tendency among Trump’s youngest judicial nominees. There’s a slapdash clumsiness in their approach that you just wouldn’t get from, say, the Chief Justice.

In Kacsmaryk’s case, this recklessness may have spilled over to his own nomination process. According to the Washington Post, Kacsmaryk submitted an article to the Texas Review of Law & Politics — his old journal — before his nomination that… made some claims:

The Obama administration, the draft article argued, had discounted religious physicians who “cannot use their scalpels to make female what God created male” and “cannot use their pens to prescribe or dispense abortifacient drugs designed to kill unborn children.”

When nominated for the federal bench, the Senate asks to see all published and upcoming work. But the Senate never got a chance to see this gem, because…

But a few months after the piece arrived, an editor at the law journal who had been working with Kacsmaryk received an unusual email: Citing “reasons I may discuss at a later date,” Kacsmaryk, who had originally been listed as the article’s sole author, said he would be removing his name and replacing it with those of two colleagues at his legal group, First Liberty Institute, according to emails and early drafts obtained by The Washington Post.

I’m sure this was just a nice gesture to give his junior colleagues a moment in the sun, right?

Sponsored

Time being a linear thing, we can deduce that the “reasons” were his initial interviews with both Texas senators over his eventual nomination to the federal bench. Which, of course, could be complicated by an article where he rants like a loon about “abortifacients.”

There are a lot of liberals up in arms over the revelations from this article, but to be honest the article is irrelevant. Kacsmaryk’s thoughts on these subjects were abundantly clear from everything else he’d ever done in his whole career. His job before his nomination was deputy general counsel to an organization that’s described as “a Christian conservative legal group that pursues religious-liberty cases.” It’s wishfully revisionist to believe that a second-tier journal article bashing Trans people was the silver bullet that would’ve convinced the majority GOP Senate to bury this nomination.

But that’s also what makes this story so damning — the cover-up was all so unnecessary. The Senate Republicans of the 116th Congress weren’t going to be fazed by anything in this article. Kacsmaryk didn’t need to cover this up, but he didn’t want to have to defend his own words so he seemingly scurried over to the law journal at the 11th hour to outsmart the United States Senate.

Jurists trying to cover up their actions doesn’t inspire a lot of confidence in the system.

Unfortunately, this is par for the course and it’s just going to continue to get worse. Because Kacsmaryk may be the highest profile actor in this immorality play, but far from the only one. Law professor Diane Kemker authored a piece over at Dorf on Law focusing on the breakdown of basic academic responsibility required by Kacsmaryk’s accomplices.

Sponsored

It also discloses serious academic and professional misconduct by almost everyone involved, and it calls for discipline at both the law school and state bar level. The law review editors who participated in this academic fraud and cover-up, the attorneys who passed off the work of another as their own upon the unsuspecting reading public, and the faculty who failed to prevent this – all should come in for serious criticism (at least). It is not too late for the University of Texas Law School to correct this mistake: to de-publish the article in any online format, to issue a correction properly attributing its author, and to consider appropriate discipline for the students involved. (Just this month, the Texas Supreme Court ruled that Texas public universities can revoke degrees after graduation for academic misconduct.) The Texas Bar should commence an investigation. At the very least, the administration of Texas Law should issue a public statement condemning what has happened and committing itself to making sure it never happens again.

Ted Cruz wants the bar to investigate students for asking federal judges tough questions and booing when he refuses. If that’s the standard for professional sanction then falsifying the author of an article to evade scrutiny by the Senate must involve launching lawyers into the sun via trebuchet.

Kacsmaryk could have pulled the article entirely, which would still be shady but he could argue that he wasn’t happy with what was in the article and at least pretend that he wasn’t really an ideologue. But he didn’t… the article came out anyway under the name of two juniors — in this instance, Justin Butterfield and Stephanie Taub.

And the journal agreed to this? For some reason? As Professor Kemker notes, when articles are submitted, the author usually has to sign an attestation that the piece is solely the work of the listed authors… did Kacsmaryk do that here? Did the journal just memory hole that agreement when the future judge told them to play musical chairs with the authorship?

One way or another, this is misconduct. Rule 8.04(a)(3) of the Texas Disciplinary Rules of Professional Conduct provides that “A lawyer shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” Rule 5.02 provides that “a lawyer is bound by these rules notwithstanding that the lawyer acted under the supervision of another person” – like your boss, the future federal judge.

Either Kacsymaryk, Taub, and Butterfield deceived Reitz [the journal’s EIC at the time], or all of them together (perhaps including Sasser [the GC of the organization Kacsymaryk, Taub, and Butterfield worked for) have deceived the reading public (and perhaps, the U.S. Senate). If Taub wrote the article but Kacsymaryk submitted it, they deceived the law review. If Kacsymaryk wrote it and then told Butterfield and Taub to attach their names to it (and they agreed), they deceived the law review. If (as also appears likely), at least Reitz and perhaps other law review editors were in on it, then the deceit was committed against the reading public, who have a right to know who wrote what, and the Senate, which has a right to know what a candidate for a federal judgeship has published.

We’ve got recklessness on display the whole way down.

Playing fast and loose with the rules to get a specific outcome is learned behavior. Which is tragic, as the juniors and law students involved are all the next generation of federal judicial nominees.

For all the hand-wringing over law students being mean to judges, that’s a lot less frightening than a model of legal education where students roll over on ethical rules whenever an authority figure asks them to. Say what you will about protesters, but at least they have backbones.

The controversial article Matthew Kacsmaryk did not disclose to the Senate [Washington Post]
Trolling TROLP [Dorf on Law]

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

Topics

, , , ,