Biden Agenda Hits Wall in Sought-After Texas Federal Judge (1)

Biden administration policies on immigrant, reproductive, and LGBTQ rights have all hit the same roadblock in Amarillo, Texas: Judge Matthew Kacsmaryk.

The federal trial court judge in the Northern District of Texas has halted federal action meant to protect asylum seekers and tossed rules expanding teen access to birth control. He also rejected a policy that stopped doctors from discriminating against people based on their sexual orientation or gender identity.

Kacsmaryk now has the opportunity to strip a common drug used in medication abortions of its federal approval and block regulators from enforcing a Labor Department rule that permits private-sector employers to consider environmental, societal, and governance factors when choosing investments for 401(k) plans.

“I’m hard-pressed to think of a federal judge who has had a greater impact in less time,” said Stephen Vladeck, a University of Texas at Austin School of Law professor.

The Donald Trump appointee, who worked at a conservative religious liberties legal group before his confirmation in 2019, has become a sought-after judge for both private litigants challenging the federal government and Texas Attorney General Ken Paxton (R). That’s in large part because he reliably returns rulings undercutting Biden’s agenda.

Kacsmaryk has gotten six out of 27 lawsuits the Lone Star state has filed against the federal government since President Joe Biden took office. That places him second behind fellow Trump appointee Judge Drew Tipton for having heard more of these cases than any other judge, according to Vladeck, who’s been tracking the disputes.

Judge Shopping

Thanks to the way cases are assigned in his district, litigants had a 95% chance up until September of getting Kacsmaryk whenever a case is filed in the Amarillo Division, one of seven in the Northern District of Texas. A new case assignment order has now made it a 100% guarantee, with Kacsmaryk getting all civil and criminal cases filed there.

Critics say the current system allows Republicans to keep shopping their cases to sympathetic conservative judges.

“In case after case, Kacsmaryk has ignored the law to impose conservative dogma on the entire country,” Kimberly Humphrey, the Alliance for Justice’s legal director for federal courts, said in a statement.

The Labor Department cited judge shopping as an argument for moving the case challenging its retirement rule from Kacsmaryk’s court to another district court, or at a minimum another division where more than one judge is assigned cases.

Republican state attorneys general repeatedly filing lawsuits “in single-judge divisions, or divisions where they are otherwise almost always guaranteed to procure a particular judge, undermines public confidence in the administration of justice,” the agency said in a Feb. 7 filing.

Kacsmaryk’s chambers didn’t immediately respond to a request for comment.

One of Kacsmaryk’s most contentious decisions came in the fight over Biden’s efforts to end the Trump-era program that forced asylum seekers to wait in Mexico while their deportation proceedings are pending.

The US Supreme Court in June allowed Biden to end the program, formally known as the Migrant Protection Protocols (MPP), after Kacsmaryk ordered it to remain in effect, but sent the case back to him to determine if Biden’s plan followed the proper rulemaking requirements. Kacsmaryk blocked Biden again in December, while claims of Administrative Procedure Act violations are being argued.

“In a number of ways his legal rulings have involved new and unprecedented readings of the immigration statute,” said Jennifer Koh, an associate professor at Pepperdine Caruso School of Law.

In other ways, Koh said, Kacsmaryk isn’t that much different than other federal district court judges in Texas who have taken similar action to enjoin the Biden administration from shifting immigration policies.

‘Rule of Law Guy’

Hiram Sasser, who worked with Kacsmaryk at the First Liberty Institute, pushed back on the notion that partisan politics are driving his former colleague’s decision-making.

“He’s not writing to anyone other than the law,” said Sasser, who is the group’s executive general counsel.

Before he worked for the First Liberty Institute as deputy general counsel, Kacsmaryk, who was born in 1977 in Gainesville, Florida, served as an assistant US attorney in the Northern District of Texas for five years and briefly as an adjunct professor at Southern Methodist University. He earned his law degree from the University of Texas and his undergraduate degree at Abilene Christian University.

“One of the things he thought was really important when he came to First Liberty was representing minority faiths,” Sasser said, noting that Kacsmaryk led a case defending the Islamic Association of Collin County in a fight with the town’s zoning commission over land the Muslim group wanted to use for a cemetery.

Sasser described Kacsmaryk as a stickler when it comes to details and someone who worked to ensure the law was being followed the way it was intended.

“He’s very much a rule of law guy,” Sasser said.

The two worked together on cases when Kacsmaryk was at Baker Botts LLP litigating commercial, constitutional, and intellectual property cases in state and federal courts.

It’s Kacsmaryk’s background litigating conservative social issues at First Liberty Institute, though, that Vladeck said has made him attractive to certain litigants.

“Unlike, for example, other Trump-appointed judges in Texas, who have more traditional state government background, he was in the trenches of these hot button, divisive social issues,” Vladeck said.

During his 2017 confirmation hearing, Kacsmaryk was asked if his positions while working for the religious liberty legal group would carry over to the federal bench. Sen. Richard Blumenthal (D-Conn.) wanted to know about testimony Kacsmaryk gave in 2015 supporting a proposed state bill to allow faith-based adoption agencies to refuse to place children with same-sex couples.

“As a judicial nominee, I don’t serve as legislator, I don’t serve as an advocate for counsel,” Kacsmaryk said. “I follow the law as it is written not as I would have written it.”