Your analysis of the judge's opinion does seem to prove that the judge's decision is not based on a neutral analysis of the law but is instead based on his personal beliefs against abortion. He departs from basic legal principles, from standing to the statute of limitations, in order to reach a decision that is not supported by any reasoned legal analysis.
He also uses language like "abortionist" and "aborted human". If he wanted to be taken seriously, he wouldn't stray any where near such behavior. These zealots appointed by Trump don't even try and maintain plausible deniability, so why should anyone have to show them any respect? If they beg for one's contempt, then by all means, they should be rewarded with it. What I'd like is for someone to pin John Roberts down and force him to justify these people with his balls and strikes mantra. The right-wing on the SCOTUS has repeatedly turned a blind eye to this behavior, which betrays how they really feel about it.
While I understand your statement that the judge’s personal beliefs shouldn’t be held against him, his anti-abortion beliefs are THE reason he was appointed to the federal bench and why the plaintiffs in this case established their association in Amarillo so that he would hear the case. They knew he would rule the way he did. Anyone paying attention knew he would rule the way he did.
"I will conclude with a note of optimism. Decisions like this one are rare."
Given how utterly lawless, overreaching, and absurd this decision is, and given that this is neither the first nor presumably the last case that will be heard by partisan extremists in Texas, this optimism feels entirely undue.
" I do not agree with suggestions that the Administration or anyone else should violate judicial decisions. Trust the process."
What Kacsmaryk has done here is ignore the actual law in an attempt to force his political opinion on everyone in the country. And due to the partisan makeup of the higher courts above him, there's not actually any guarantee that his lawlessness will be curbed. There's certainly no guarantee that he'll be prevented from offering similarly batshit rulings in the future. You just spent around 8,000 words explaining just how far outside the law this judge went. The demand to "trust the process" rings hollow.
Is the process likely to strip Kacsmaryk of his position, so he can't do this again? Or does "trusting the process" mean just dealing with the reality of extremist partisan judges making rulings they have no right to make?
Excellent points. Further, the optimistic belief in the degree of rarity can seemingly only be drawn with any plausibility by reference to the entire Article III judiciary ... the largest possible population set. This, however, is an overbroad sampling error that produces serious misjudgment, I believe, as to the true scope of the core issues that more properly lie within a number of smaller discrete population sets.
If that population were limited to Trump appointed judges, then this declared rarity vanishes and becomes instead an observable tendency (with exceptions, to be sure) that is consistently egregious in the number, range, and degree of clear error. These errors are not random or sporadic in nature, but rather are quite clearly driven by consistent application of certain partisan, theocratic, and/or ideological personal beliefs that require an otherwise inexplicable departure from long-enduring standards of judicial reasoning. This observed tendency is pervasive across the many Districts and Circuits, even reaching to the recent appointees of the Supreme Court.
Perhaps to a lesser degree, but comparably illustrative, one can see a similar pattern in appointees who have been drawn from The Federal Society ranks. From this (substantially overlapping) population set, the problem dimensions expand dramatically beyond simply Article III Judges to include Executive Branch appointees such as William Barr whose heavy thumb on the scales of justice consistently tampered with and obstructed enforcement processes for improper purposes and selective advantage.
The evident degradation and co-option of law as a social institution by activist radical elements is quite real and pervasive, not rare, and it continues to grow as an agenda-driven project of pseudo-conservatives. Casting this profound problem of our particular historical moment in such narrow and minimizing terms seems dangerously complacent, at the very least. More troublesome analytically, it demonstrates a striking lack of awareness of the depth or breadth of this pernicious extremism and the corrosion of public trust and confidence in our judicial system it engenders.
Now that the decision is out, are you still critical of the people who warned that this judge was biased?
From your prior post:
“I view these attacks as inappropriate and unfair: the judge was entitled to represent whatever clients he wished before ascending the bench, and I see no basis for believing that the judge will act in bad faith in this case or any other.“
I must say that I have not seen any accounts that simply "criticize the presiding judge for his views on abortion and his prior advocacy." Rather, the accounts I have read are based in large part on (1) Judge Kacsmaryk's unorthodox rulings from the Amarillo Division in prior politically charged cases and (2) the evident fact that plaintiffs specifically selected this judge to hear their long-shot compliant, as other plaintiffs ideologically opposed the the current administration have done over the past two years. Plaintiffs likely had little interest in having their complaint heard by a pro-life judge who would apply the law in good faith.
I disagree that the critics I am aware of (you do not specifically cite any) were less fair than you; rather, they were simply more prepared to consider all the evidence before us.
I do not “trust the process” any longer. Lunatic fringe right-wing judges with no business adjudicating these issues behind a protective wall of lifetime tenure keep showing us they will disregard the law, the Constitution, precedent, fundamental liberties, public interest, equal protection, and basic decency to pursue a naked & aggressively ideological agenda. GOP has created a world in which the majority of us must submit to laws with which we disagree and which violate our equal rights as citizens while the minority can wield the law to oppress us but remain above it when they choose to act outside of it. It’s a sickening landscape. These judges are breathtaking in their hubris and shocking in their conviction that they, as individuals, should hold absolute dominion over the collective citizenry. If Fifth Circuit overturns, perhaps I’ll “reopen” my opinion for further review. But I’m doubtful.
If this amazing piece of confabulation is not sufficient to warrant a finding that this judge is acting in bad faith, I struggle to understand what conceivable set of facts, short of the judge publicly taking the bench and pronouncing "for the following bad faith reasons, I am ruling for the plaintiffs," would suffice. No reasonable person, much less jurist, could write this.
I suppose it is possible that he is simply insane or brain-damaged in some fundamental way, perhaps because he has suffered a lobotomy since he took the bench. If so, he is unfit to serve. If not, and this decision is in fact the act of palpable bad faith that it appears to be, then he is also unfit to serve. By Kipling's principle ("if you move, I will strike, and if you do not move, I will strike"), he is unfit to serve.
Not a lawyer, but wouldn't the warped view of standing for MDs applied by the religious fanatic masquerading as a jurist in this case allow any MD in favor of providing appropriate care (including abortions) to their patients to also have standing to sue in their place to protect those rights? Would this not demonstrate that the individual is not intellectually qualified to be a judge and should be removed from the bench?
Thank you for the thorough analysis. Reviewing all those bogus citations was itself a worthy challenge. How usual is it for a judge to sua sponte go out and seek additional research not submitted by the parties? Because that sounds like an evidence violation (at least, juries cause mistrials when they do that).
It's a point of controversy, but it's about the 800th most controversial thing in this opinion. Posner was famous for doing his own research (on at least one occasion, he and his clerks actually drove out to the site of an incident; on another, he practiced donning and doffing some gear to draw his own conclusion about how long it took), which pissed off judges with a more formalistic view of what the record consists of.
In theory the line that is supposed to be drawn is between "legislative facts" (statements of general knowledge about the world) and "adjudicative facts" (statements about matters particular to a case), but this distinction is in practice impossible to draw and as far as I can tell judges just wing it based on the hoary principle of "I know extra-record evidence when I see it."
With regards to theme saturation and reading just 54 of the blog posts.
That’s a perfectly fine methodology. Yes, that fits grounded theory.
But you cannot make generalizable staticial claims with that approach. You can’t even do that internally. You CERTAINLY can’t make generalized statistical claims out of sample!!
Small sample size methodologies are excellent for building theory. But they are not at all appropriate for statistical claims.
Just for the record, transfusions and hospitalizations for untreated miscarriages, and pregnancy terminations is much higher than those that are treated. So that claim that 0.1 to 0.7 require transfusion, when compared with untreated populations (2.0) is incredibly low. So their argument is invalid.https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6507132/
This takedown is epic. The composition gets more wobbly the further it goes, but I can understand that because the sheer quantity of bullshit must have accumulated into a bullshit planet that had enough gravity to bend the mind. Assuming the appellate courts repudiate the many mistakes in this opinion, what if any recourse is there to remove this judge from the bench? I agree with Adam that it was not fair to judge his suitability for the bench from who he chose to represent, but judging his continuing suitability based on actual court opinions seems absolutely fair.
Looking into this Judge and the Judge who ruled in Washington State about 30 min. after the texas ruling the amount of people who voted for these judges to be promoted I think speaks volumes. The Obama Judge in Washington was voted in 93-4. The Judge in texas 52-46. 46 people found that he was not fit to be promoted compared to the 4 people for the previous judge. I understand that most likely it was different people who did the voting but having the numbers be that close I don't think he should have been promoted because of how extreme his personal views are. And I think this case and others prove he cannot separate his personal views from ruling in an unbiased way. I am not a lawyer or anyone who works in law just feel that the courts are not seperating things like they should.
Wow, you throughly obliterated the district’s case in under five days and it sounds like you are just getting started. Hopefully the Supreme Court will see the merits in your reasoning as well.
Your analysis of the judge's opinion does seem to prove that the judge's decision is not based on a neutral analysis of the law but is instead based on his personal beliefs against abortion. He departs from basic legal principles, from standing to the statute of limitations, in order to reach a decision that is not supported by any reasoned legal analysis.
He also uses language like "abortionist" and "aborted human". If he wanted to be taken seriously, he wouldn't stray any where near such behavior. These zealots appointed by Trump don't even try and maintain plausible deniability, so why should anyone have to show them any respect? If they beg for one's contempt, then by all means, they should be rewarded with it. What I'd like is for someone to pin John Roberts down and force him to justify these people with his balls and strikes mantra. The right-wing on the SCOTUS has repeatedly turned a blind eye to this behavior, which betrays how they really feel about it.
While I understand your statement that the judge’s personal beliefs shouldn’t be held against him, his anti-abortion beliefs are THE reason he was appointed to the federal bench and why the plaintiffs in this case established their association in Amarillo so that he would hear the case. They knew he would rule the way he did. Anyone paying attention knew he would rule the way he did.
"I will conclude with a note of optimism. Decisions like this one are rare."
Given how utterly lawless, overreaching, and absurd this decision is, and given that this is neither the first nor presumably the last case that will be heard by partisan extremists in Texas, this optimism feels entirely undue.
" I do not agree with suggestions that the Administration or anyone else should violate judicial decisions. Trust the process."
What Kacsmaryk has done here is ignore the actual law in an attempt to force his political opinion on everyone in the country. And due to the partisan makeup of the higher courts above him, there's not actually any guarantee that his lawlessness will be curbed. There's certainly no guarantee that he'll be prevented from offering similarly batshit rulings in the future. You just spent around 8,000 words explaining just how far outside the law this judge went. The demand to "trust the process" rings hollow.
Is the process likely to strip Kacsmaryk of his position, so he can't do this again? Or does "trusting the process" mean just dealing with the reality of extremist partisan judges making rulings they have no right to make?
Excellent points. Further, the optimistic belief in the degree of rarity can seemingly only be drawn with any plausibility by reference to the entire Article III judiciary ... the largest possible population set. This, however, is an overbroad sampling error that produces serious misjudgment, I believe, as to the true scope of the core issues that more properly lie within a number of smaller discrete population sets.
If that population were limited to Trump appointed judges, then this declared rarity vanishes and becomes instead an observable tendency (with exceptions, to be sure) that is consistently egregious in the number, range, and degree of clear error. These errors are not random or sporadic in nature, but rather are quite clearly driven by consistent application of certain partisan, theocratic, and/or ideological personal beliefs that require an otherwise inexplicable departure from long-enduring standards of judicial reasoning. This observed tendency is pervasive across the many Districts and Circuits, even reaching to the recent appointees of the Supreme Court.
Perhaps to a lesser degree, but comparably illustrative, one can see a similar pattern in appointees who have been drawn from The Federal Society ranks. From this (substantially overlapping) population set, the problem dimensions expand dramatically beyond simply Article III Judges to include Executive Branch appointees such as William Barr whose heavy thumb on the scales of justice consistently tampered with and obstructed enforcement processes for improper purposes and selective advantage.
The evident degradation and co-option of law as a social institution by activist radical elements is quite real and pervasive, not rare, and it continues to grow as an agenda-driven project of pseudo-conservatives. Casting this profound problem of our particular historical moment in such narrow and minimizing terms seems dangerously complacent, at the very least. More troublesome analytically, it demonstrates a striking lack of awareness of the depth or breadth of this pernicious extremism and the corrosion of public trust and confidence in our judicial system it engenders.
Now that the decision is out, are you still critical of the people who warned that this judge was biased?
From your prior post:
“I view these attacks as inappropriate and unfair: the judge was entitled to represent whatever clients he wished before ascending the bench, and I see no basis for believing that the judge will act in bad faith in this case or any other.“
Thanks very much for the detailed analysis.
I must say that I have not seen any accounts that simply "criticize the presiding judge for his views on abortion and his prior advocacy." Rather, the accounts I have read are based in large part on (1) Judge Kacsmaryk's unorthodox rulings from the Amarillo Division in prior politically charged cases and (2) the evident fact that plaintiffs specifically selected this judge to hear their long-shot compliant, as other plaintiffs ideologically opposed the the current administration have done over the past two years. Plaintiffs likely had little interest in having their complaint heard by a pro-life judge who would apply the law in good faith.
I disagree that the critics I am aware of (you do not specifically cite any) were less fair than you; rather, they were simply more prepared to consider all the evidence before us.
I do not “trust the process” any longer. Lunatic fringe right-wing judges with no business adjudicating these issues behind a protective wall of lifetime tenure keep showing us they will disregard the law, the Constitution, precedent, fundamental liberties, public interest, equal protection, and basic decency to pursue a naked & aggressively ideological agenda. GOP has created a world in which the majority of us must submit to laws with which we disagree and which violate our equal rights as citizens while the minority can wield the law to oppress us but remain above it when they choose to act outside of it. It’s a sickening landscape. These judges are breathtaking in their hubris and shocking in their conviction that they, as individuals, should hold absolute dominion over the collective citizenry. If Fifth Circuit overturns, perhaps I’ll “reopen” my opinion for further review. But I’m doubtful.
If this amazing piece of confabulation is not sufficient to warrant a finding that this judge is acting in bad faith, I struggle to understand what conceivable set of facts, short of the judge publicly taking the bench and pronouncing "for the following bad faith reasons, I am ruling for the plaintiffs," would suffice. No reasonable person, much less jurist, could write this.
I suppose it is possible that he is simply insane or brain-damaged in some fundamental way, perhaps because he has suffered a lobotomy since he took the bench. If so, he is unfit to serve. If not, and this decision is in fact the act of palpable bad faith that it appears to be, then he is also unfit to serve. By Kipling's principle ("if you move, I will strike, and if you do not move, I will strike"), he is unfit to serve.
Not a lawyer, but wouldn't the warped view of standing for MDs applied by the religious fanatic masquerading as a jurist in this case allow any MD in favor of providing appropriate care (including abortions) to their patients to also have standing to sue in their place to protect those rights? Would this not demonstrate that the individual is not intellectually qualified to be a judge and should be removed from the bench?
Thank you for the thorough analysis. Reviewing all those bogus citations was itself a worthy challenge. How usual is it for a judge to sua sponte go out and seek additional research not submitted by the parties? Because that sounds like an evidence violation (at least, juries cause mistrials when they do that).
It's a point of controversy, but it's about the 800th most controversial thing in this opinion. Posner was famous for doing his own research (on at least one occasion, he and his clerks actually drove out to the site of an incident; on another, he practiced donning and doffing some gear to draw his own conclusion about how long it took), which pissed off judges with a more formalistic view of what the record consists of.
In theory the line that is supposed to be drawn is between "legislative facts" (statements of general knowledge about the world) and "adjudicative facts" (statements about matters particular to a case), but this distinction is in practice impossible to draw and as far as I can tell judges just wing it based on the hoary principle of "I know extra-record evidence when I see it."
Isn't that exactly what Harry Blackmun did when he wrote the opinion in Roe?
With respect, your unanswerable takedown of this egregious opinion makes it impossible not to think that this judge is utterly ruled by his priors.
With regards to theme saturation and reading just 54 of the blog posts.
That’s a perfectly fine methodology. Yes, that fits grounded theory.
But you cannot make generalizable staticial claims with that approach. You can’t even do that internally. You CERTAINLY can’t make generalized statistical claims out of sample!!
Small sample size methodologies are excellent for building theory. But they are not at all appropriate for statistical claims.
Just for the record, transfusions and hospitalizations for untreated miscarriages, and pregnancy terminations is much higher than those that are treated. So that claim that 0.1 to 0.7 require transfusion, when compared with untreated populations (2.0) is incredibly low. So their argument is invalid.https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6507132/
Sorry, I should have mentioned that the 0.1 referred to transfusions, and the 0.7 referred to hospitalizations.
This takedown is epic. The composition gets more wobbly the further it goes, but I can understand that because the sheer quantity of bullshit must have accumulated into a bullshit planet that had enough gravity to bend the mind. Assuming the appellate courts repudiate the many mistakes in this opinion, what if any recourse is there to remove this judge from the bench? I agree with Adam that it was not fair to judge his suitability for the bench from who he chose to represent, but judging his continuing suitability based on actual court opinions seems absolutely fair.
Looking into this Judge and the Judge who ruled in Washington State about 30 min. after the texas ruling the amount of people who voted for these judges to be promoted I think speaks volumes. The Obama Judge in Washington was voted in 93-4. The Judge in texas 52-46. 46 people found that he was not fit to be promoted compared to the 4 people for the previous judge. I understand that most likely it was different people who did the voting but having the numbers be that close I don't think he should have been promoted because of how extreme his personal views are. And I think this case and others prove he cannot separate his personal views from ruling in an unbiased way. I am not a lawyer or anyone who works in law just feel that the courts are not seperating things like they should.
Yes, but _aside from_ those defects, what's wrong with the decision?
You mean like "putting aside all the reasons this stay application shouldn't be granted, this stay application should be granted"?
That "logic" is now Officially Sam Alito Approved!
Judges like Kacsmaryk and Cannon remind me of when William Wegman dressed his Weimaraners up in people clothes.
Wow, you throughly obliterated the district’s case in under five days and it sounds like you are just getting started. Hopefully the Supreme Court will see the merits in your reasoning as well.