Democratic senators and LGBT advocates want to stop the confirmation of one of President Donald Trump’s most controversial judicial nominees this week, but the fight underscores just how powerless they are to do so without help from Republicans.
Majority Leader Mitch McConnell scheduled floor votes starting Tuesday afternoon for a slate of appointments including Matthew Kacsmaryk to be a judge for the Northern District of Texas. The Kentucky Republican has used a 53-47 majority and streamlined floor rules to quickly confirm 34 judicial nominees this year.
Kacsmaryk, despite a history of controversial statements and positions, seems to be no exception. The Senate voted 52-44 on cloture on his nomination and he could be confirmed as soon as Tuesday. Sen. Susan Collins of Maine was the only Republican to vote against cloture.
Lamba Legal and other liberal advocacy groups say the past statements and work of Kacsmaryk, an attorney at First Liberty Institute in Texas, show he is a partisan ideologue whose opposition to LGBT rights and women’s health care means litigants couldn’t expect a fair hearing in his courtroom.
They highlight how Kacsmaryk said being transgender is a “delusion,” and how he fought in court the 2010 health care law’s contraception mandate and argued against same-sex marriage when the issue was at the Supreme Court in Obergefell v. Hodges in 2015.
Collins announced she would oppose Kacsmaryk’s nomination because his “extreme” statements “indicate an alarming bias against the rights of LGBTQ Americans and disregard for Supreme Court precedents.”
“For example, Mr. Kacsmaryk has dismissed proponents of reproductive choice as ‘sexual revolutionaries,’ and disdainfully criticized the legal foundations of Roe v. Wade,” Collins said in a statement, referring to the landmark Supreme Court decision legalizing abortion. “He has described the ‘campaign for same-sex marriage’ as ‘typified by lawlessness,’ and he has derided the Supreme Court’s Obergefell opinion.”
One Republican defection might have been enough to put a Trump judicial confirmation in doubt last Congress. Now, there needs to be at least four Republicans who oppose a nomination this year to fall short of a simple majority needed for confirmation.
There’s not much optimism. The Senate Judiciary Committee advanced Kacsmaryk’s nomination on a 12-10 party-line vote in February. Kacsmaryk has never been a judge but was an assistant U.S. attorney in the Northern District of Texas from 2008 to 2013.
Mike Davis, president of The Article III Project that advocates for Trump judicial nominations, said Kacsmaryk is a leading attorney for religious liberty who has broad support from his colleagues, classmates and fellow lawyers from across the political and legal spectrum.
“This left-wing fear mongering is unfounded, unfairly conflates legal advocacy with bigotry and actually demonstrates religious bigotry toward Christians and other people of faith who wish to speak in the public square,” said Davis, a former counsel for judicial nominations at the Judiciary Committee.
Sen. Jeff Merkley, D-Ore., told advocacy groups Tuesday morning to call senators “to see if there’s any chance he can be defeated.”
“Susan Collins is on board. Now, she’s most often on board when she’s worked it out with her majority that her vote won’t affect the outcome,” Merkley said. “But we still appreciate the fact that she’s expressing an opinion. We would certainly like some other Republicans to join her and win this battle.”
Last Congress, a nominee for the Eastern District of Texas, Jeff Mateer, withdrew amid revelations he had described transgender children as evidence of “Satan’s plan.”
Sharon McGowan, the chief strategy officer and legal director at Lambda Legal, referred to Kacsmaryk as “Jeff Mateer’s doppelganger.” And Daniel Goldberg, the legal director at Alliance for Justice pointed out Mateer was a bridge too far for Republicans.
“This is a test for other Republicans,” Goldberg said of the Kacsmaryk vote. “Are they willing to stand up and defeat this nominee?”
Kacsmaryk has been waiting a long time for a confirmation vote. His nomination was first ready for a floor vote in December 2017.
It was not lost on opponents of Kacsmaryk that McConnell scheduled the vote during LGBT pride month.
“Mitch McConnell has his own way of celebrating pride, which is to put on the floor a horrific nominee,” Merkley said.
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