53 Comments

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.

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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.

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"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?

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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.“

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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.

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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.

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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.

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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?

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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).

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With respect, your unanswerable takedown of this egregious opinion makes it impossible not to think that this judge is utterly ruled by his priors.

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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.

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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/

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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.

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Yes, but _aside from_ those defects, what's wrong with the decision?

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Judges like Kacsmaryk and Cannon remind me of when William Wegman dressed his Weimaraners up in people clothes.

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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.

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