Texas protesters advocating for abortion access in 2021. CREDIT: Shutterstock/Vic Hinterlang
Today, Judge Matthew Kacsmaryk (N.D. Texas) issued a stay blocking the FDA’s approval — from 23 years ago — of mifepristone, one of the two medications routinely used to perform a medication abortion, the most common form of abortion in the United States. As a result, it will become much more difficult for individuals to access medication abortions, even in states that protect the fundamental right to abortion.
Last summer, when the Supreme Court took away our rights and upended 50 years of precedent by overturning Roe, the justices consoled us by claiming they were only handing power back to the states. So, how did we get to a place where, even in states protecting abortion, critical abortion medication that has been deemed safe for over 20 years is now banned? The answer is simple: bad judges, bad faith, and a reluctance to address Republican obstruction head-on in the Senate.
A Seat Held Open
Judge Kacsmaryk’s predecessor, Judge Mary Lou Robinson, was a women’s rights pioneer and staunch advocate of gender equality who semi-retired in February of 2016. Despite there being nearly a year remaining in President Obama’s second term, the seat remained vacant thanks to obstruction by Senate Republicans. It is because of this Republican obstruction, enabled by Senate Democrats’ preference for maintaining Senate traditions over prioritizing judicial confirmations, that an extremist like Judge Kacsmaryk sits on the bench today.
Senate Republicans have long made clear that they don’t intend to play by the rules when it comes to judicial nominations. When President Obama took office, there was one district court vacancy in Texas, but when he left office, there were 11, including that original vacancy. Through eight years of the Obama Administration, Senate Republicans held these Texas vacancies open — along with nearly a hundred others — for a future Republican president’s nominees, despite the fact Democrats controlled the Senate for six of those years. This obstruction was made possible by an archaic Senate formality called the blue slip that is still being used in bad faith to hold seats open today.
The blue slip is an informal courtesy that operates as a political veto, allowing home-state senators to signal their approval or disapproval of a judicial nominee. By not returning a blue slip or taking extensive time to come to a decision, a senator can block district court nominees nominated in their state from advancing. Senators can even use blue slips to kill a nomination before it is publicly announced by making their intent to withhold a blue slip known to the White House. While the practice might seem like a well-intentioned effort to make the federal judicial nominations process more bipartisan, in practice it has a long history of racism and obstruction.
Republican senators have repeatedly used blue slips to block progress. For example, during the Obama Administration, Judge Abdul Kallon, who would have been the first Black judge from Alabama on any federal court of appeals, was blocked from the Eleventh Circuit due to blue slips. Similarly, Justice Myra Selby, nominated to the Seventh Circuit, would have been the first Black judge from Indiana to serve on that circuit and Rebecca Haywood, from Pennsylvania, would have been the first Black woman jurist to serve on the Third Circuit. Both were blocked by blue slips. During this period, blue slips were also likely used to preemptively block eight vacancies in Texas, including the vacancy that Judge Kacsmaryk eventually filled. That helps explain why only 16 (30%) of the 52 active federal district judges in Texas were appointed by a Democratic president, even though Democrats and Republicans have controlled the White House for an almost equal period this century.
In fact, only 20 federal judges total were confirmed during President Obama’s final two years in office. That shockingly low number (the fewest number of judges appointed in any Congress since President Eisenhower) was the result of Republican senators’ conniving use of blue slips, the Republican-controlled Senate’s lack of action on judicial nominees, and Democratic leadership that often failed to prioritize judges until it was too late.
Judge Kacsmaryk’s Confirmation
On Sept. 7, 2017, President Donald Trump nominated Judge Kacsmaryk to the Northern District of Texas. Before his confirmation, Kacsmaryk had served as Deputy General Counsel to the First Liberty Institute, a conservative Christian legal organization. There, he built a career out of opposing access to reproductive care and LGBTQ+ rights — making his extreme beliefs abundantly clear.
In addition to defending an Oregon bakery that denied services to a same-sex couple because of their sexual orientation, Kacsmaryk fought the following policies while working at the First Liberty Institute:
- the EEOC’s position that sexual orientation and gender identity are covered by Title VII’s employment nondiscrimination protections,
- a rule clarifying that hospitals receiving Medicare and Medicaid cannot discriminate against patients based on sexual orientation and gender identity,
- the inclusion of nondiscrimination clauses in the Homeless Youth and Trafficking Prevention Act and the Violence Against Women Act 2013 reauthorization bill,
- the Obamacare employer contraceptive mandate
- a Washington state law that required pharmacists to stock an assortment of drugs, including birth control and emergency contraceptives.
Unsurprisingly, Judge Kacsmaryk made no attempt to hide his desire to see Roe v. Wade overturned prior to the Dobbs decision last spring.
Given his extreme and partisan history, Alliance for Justice seriously doubted Kacsmaryk’s ability to evenhandedly dispense justice. Raising the alarm, AFJ sent a letter opposing his nomination to the Senate Judiciary Committee and worked closely with partners to educate Congress and the public about his extremism. AFJ also issued and distributed a report detailing his extreme beliefs and partisan history, urging widespread opposition to his nomination. Despite these efforts and the efforts of advocates across the country, Judge Kacsmaryk was confirmed by a vote of 46–42. Notably, Sen. Susan Collins, a Republican, voted against him due to his “extreme statements” on reproductive rights and “inability to respect precedent and apply the law fairly.”
The Devastating Results
Having such an extremist federal court in Texas has allowed regressive litigators to forum shop their cases there; in other words, they can pick and choose which judge hears their legal challenges. This provides a pathway for conservatives to undermine measures that protect immigrants, the LGBTQ+ community, the First Amendment, voting rights, affirmative action, abortion, workers, and the environment.
Federal district courts have discretion in how they assign cases. In most districts across the country, cases are assigned randomly, meaning a case filed anywhere within a district has an equal chance of being assigned to any judge in that district. In Texas, however, geography determines assignments. Texas’ district courts are subdivided in such a way that the city of Amarillo has a single federal district court judge assigned to almost all cases filed there: Judge Kacsmaryk. That means litigants filing a federal case in Amarillo can almost certainly bet that he will decide their case. It should thus come as no surprise that conservatives have regularly turned to Judge Kacsmaryk’s court to file legal challenges seeking to thwart progress, equality, and justice.
Given his stark record, it is unsurprising that Judge Kacsmaryk has almost always held in favor of conservative litigants. His most notable opinions since joining the bench include Deanda v. Becerra, where he held that all minors in Texas must receive parental approval before obtaining contraception from federally funded clinics. He also ordered the reinstatement of a Trump-era policy requiring asylum seekers to wait outside of the United States while their claims are processed — an unprecedented imposition on foreign policy by the courts. That decision was later overturned by the Supreme Court. Last year, Judge Kacsmaryk ruled that the Biden administration violated the Administrative Procedure Act when the Secretary of Health and Human Services informed health care providers that his department would interpret “on the basis of sex” to include sexual orientation and gender identity. He also vacated protections for transgender workers enacted by Biden administration.
What Now?
Judge Kacsmaryk’s ruling in this case is devastating, but we have to acknowledge that it was entirely predictable. The Federalist Society, President Donald Trump, and Senate Republicans all worked together to place him on this court to create a conservative pipeline to an extremist Supreme Court. His position was only made possible as a direct result of obstruction, including the abuse of blue slips. We likely can’t remove Judge Kacsmaryk, but we can lessen his and other extremist judges’ impact by flooding the bench with better-qualified jurists who will dispense justice free of prejudice. However, with dozens of lingering judicial vacancies in states with two Republican senators, the federal bench cannot be filled unless Senate leaders eliminate the blue slip and other procedures used to block qualified nominees.
If the Senate doesn’t get rid of the blue slip now, then history will simply repeat itself. Early in Obama’s presidency, Senate Democrats could have eliminated the blue slip, but they instead favored tradition and cooperation over results and equal-justice outcomes. They allowed the tradition to continue unchanged until it was too late to break the judicial logjam, leading to today’s devastating decision. We cannot allow that to happen again.
When President Biden took office, there were no judicial vacancies in Texas, as President Trump and Senate Republicans had worked together to fill them all. Now, there are six current and announced future vacancies in the state — none of which have a nominee slated to fill the seat. While the White House has been working in good faith to put forward qualified nominees, Texas Senators Ted Cruz and John Cornyn have publicly bragged about blocking nominees, and it’s unclear to what extent they’ve already been using the blue slip to do so. If left unchecked, the obstruction that led to today’s devastating ruling will continue to pave the way for more judges like Judge Kacsmaryk.
Senate Democrats need to show that they value having good judges on the bench. We need Congress to act now to protect our courts’ impartiality and to prevent the further erosion of our rights by eliminating the blue slip.
Mari Nemec is a Dorot Fellow at Alliance for Justice.
Jake Faleschini is Program Director for Justice at Alliance for Justice.