Matthew Kacsmaryk – Nominee to the U.S. District Court for the Northern District of Texas

Yesterday, as the Senate recessed, it returned approximately 100 nominees to the White House unconfirmed.[1]  Among the nominees returned was Matthew Kacsmaryk, a Texas lawyer who has made a name for himself as an advocate for religious liberty.  While Kacsmaryk may lack the explosive paper trail that sank fellow Texas nominee Jeff Mateer, he is still likely to face strong opposition for his work on LGBT and reproductive rights issues.

Background

Matthew Joseph Kacsmaryk attended Abilene Christian University, receiving his Bachelor of Arts summa cum laude in 1999 and a Juris Doctor from the University of Texas School of Law in 2003.  After graduating from law school, Kacsmaryk joined the Dallas office of Baker Botts as an associate.

In 2008, Kacsmaryk left Baker Botts and joined the U.S. Attorney’s Office for the Northern District of Texas as an Assistant U.S. Attorney (AUSA).  In this role, Kacsmaryk prosecuted criminal and national security cases, working on both trials and appeals.  In 2013, Kacsmaryk joined the First Liberty Institute, a non-profit law firm frequently representing individuals in claims of religious liberty.  He serves as Deputy General Counsel at the organization.

History of the Seat

Kacsmaryk has been nominated to fill a vacancy on the U.S. District Court for the Northern District of Texas.  The Northern District is facing a high level of turnover, with four of the twelve allotted judgeships for the District currently vacant, and a fifth scheduled to open later next year.  The high level of vacancies have been exacerbated by the Republican Senate’s failure to confirm three Obama nominations to the Northern District in the 114th Congress.

The vacancy Kacsmaryk has been nominated to fill opened on February 3, 2016, when Judge Mary Lou Robinson moved to senior status.  While Obama sent nominees to three other vacancies on the Northern District, he did not nominate anyone to fill the Robinson seat.  As such, the seat remained vacant, and Kacsmaryk was nominated, with the recommendations of Texas Senators John Cornyn and Ted Cruz, on September 7, 2017.

Legal Experience

Kacsmaryk has worked in three primary legal positions in his career: as an associate at Baker Botts; as a federal prosecutor; and as Deputy General Counsel at the First Liberty Institute.  In his initial position at Baker Botts, Kacsmaryk focused on commercial, constitutional, and intellectual property litigation.[2]  He also received the Opus Justitiae Award for Outstanding Commitment to Pro Bono Work.[3]

From 2008 to 2013, Kacsmaryk worked as a federal prosecutor in the U.S. Attorney’s Office for the Northern District of Texas.  In this capacity, Kacsmaryk worked primarily with the appellate division, arguing criminal appeals before the U.S. Court of Appeals for the Fifth Circuit.[4]  He also handled several criminal trials, including the prosecution of college student Khalid Ali Aldawsari for his purchase of nitric acid and other products to construct explosives for a terror plot.[5]

As Deputy General Counsel at the First Liberty Institute, Kacsmaryk oversees the education and policy advisory teams.[6]  In this capacity, he has frequently commented on issues of religion and the law.  For example, in 2014, Kacsmaryk described the Obama Administration’s executive order requiring all federal contractors to avoid anti-LGBT discrimination as favoring “sexual revolution fundamentalism over the sincerely-held religious beliefs of Americans.”[7]  Kacsmaryk was also involved in fights against the Obama Administration’s directive to school districts encouraging the accommodation of “gender identity” in gender-specific public facilities.[8]  Kacsmaryk also criticized a similar directive in the Fort Worth Independent School District, arguing that the directive made “no reasonable accommodation for dissenting Muslims, Jews, Mormons, Catholics, and Protestants who adhere to the Book of Genesis and continue to believe that God ‘created them male and female.’”[9]

Among other cases, Kacsmaryk has been involved in the suit to defend a Mississippi law allowing businesses and government workers to avoid service to LGBT individuals and same-sex couples based on their religious beliefs,[10] as well as a challenge to the Obama Administration’s contraception mandate.[11]

Writings

In his capacity at First Liberty Institute, Kacsmaryk has authored several articles on issues of religious freedom and conscience.  These articles lay out a broad view of “religious freedom” encompassing the rights of religious individuals not to comply with laws that violate their moral beliefs.  In a 2016 article, Kacsmaryk wrote:

“…exceptions for conscientious objectors are the rule in the American legal tradition.”[12]

Kacsmaryk has also repeatedly criticized anti-discrimination provisions for LGBT individuals, as well as same sex marriage.  In an article published shortly before the Supreme Court’s decision in Obergefell, Kacsmaryk characterized same-sex marriage as an extension of the weakening on marriage’s four pillars, coming on top of no-fault divorce, the decriminalization of consensual extra-marital sexual conduct, and the decriminalization of contraception & abortion.[13]  He went on to note that, with the legalization of same-sex marriage, “faith-based organizations cannot safely assume that their external contracts, grants or cooperative agreements honor their sincerely held religious beliefs.”[14]

In another article, Kacsmaryk described the Equality Act, which would make sexual orientation and gender identity a “protected class” under Title VII as “seek[ing] to weaponize Obergefell.”[15]  Instead, Kacsmaryk endorsed the First Amendment Defense Act, which prevents government enforcement of civil rights laws against those who act with a religious belief or moral conviction opposing same-sex marriage or sexual relations.[16]

Political Activity

Kacsmaryk has frequently supported Republican candidates as a donor, including donations to both Cornyn and Cruz.[17]  Among his more prominent donations, Kacsmaryk donated $1000 to both Fred Thompson and John McCain during the 2008 Presidential campaign, and gave $1000 to Cruz’s campaign in 2016.[18]

Overall Assessment

Based on the aggressive questions from Democrats at his confirmation hearing, and by the strong opposition to his nomination by LGBT groups, it is unlikely that Kacsmaryk will get any Democratic support.  In a post-nuclear option world, the key question is whether Kacsmaryk will maintain enough Republican votes to be confirmed.  After the seating of Alabama senator Doug Jones, opponents will need to peel off two Republican senators to defeat Kacsmaryk.

In making their case, Kacsmaryk’s critics will likely point to his long paper trail of criticism of the LGBT and reproductive rights movement.  Specifically, they may point to his writings that criticize (by comparison) well-established principles such as no-fault divorce and the decriminalization of contraception.  They may also argue that Kacsmaryk’s writings demonstrate a bias against LGBT individuals (indeed, the Alliance for Justice has already made that argument).

In response, Kacsmaryk’s supporters will seek to contextualize his statements as reflecting a commitment to “religious liberty” rather than expressing hostility to LGBT rights.  Furthermore, they will likely point to Kacsmaryk’s less controversial tenures at Baker Botts and the U.S. Attorney’s Office to demonstrate his commitment to the law.

Given the salience of religious, reproductive, and LGBT rights in the political climate, Kacsmaryk’s nomination will likely rise and fall based on the pressure placed on Republican moderates such as Sens. John Kennedy, Susan Collins, and Lisa Murkowski.  As of today, he remains more likely than not to become a federal judge in 2018.


[1] Andrew Restuccia and Seung Min Kim, Democrats Block Dozens of Trump Nominees, Politico, Dec. 22, 2017, https://www.politico.com/story/2017/12/22/trump-nominees-democrats-block-314775?lo=ap_e2.  

[2] First Liberty Institute, Matthew Kacsmaryk, https://firstliberty.org/team/matthew-kacsmaryk/.  

[3] See id.

[4] See id.

[5] See United States v. Aldawsari, No. 5.11-Cr-015-C, 2011 U.S. Dist. LEXIS 159597 (N.D. Tex. April 6, 2011).  See also Associated Press, Saudi Man Aldawsari Sentenced to Life in Prison for Failed U.S. Bomb Plot, Fox News, Nov. 13, 2012, http://www.foxnews.com/us/2012/11/13/saudi-man-convicted-in-failed-us-bomb-plot-to-be-sentenced-faces-life-in-prison.html.  

[6] See supra n. 1.

[7] Press Release, New York County Lawyer’s Association, Liberty Institute Attorneys Respond to President Obama’s Disregard for Faith-Based Contractors in Signing Executive Order that Ignores American Ideal of Diversity (July 22, 2014).

[8] Press Release, First Liberty Institute, Threat to Religious Schools Partially Lifted by Trump Executive Order and Supreme Court Action (Mar. 10, 2017) (available at https://firstliberty.org/category-newsroom/commentary/).

[9] Leah Jessen, Parents Beat Back Obama’s Transgender Bathroom Mandate in Texas Schools, The Daily Signal, July 24, 2016, http://dailysignal.com/2016/07/24/parents-beat-back-obamas-transgender-bathroom-mandate-in-texas-schools/.  

[10] Chuck Lindell, Miss. Ruling Unlikely to Deter Texas GOP, Austin American Statesman, July 2, 2016.

[11] Christian & Missionary Alliance v. Burwell, 2015 WL 437631 (M.D. Fla. Feb. 3, 2015).

[12] Matthew Kacsmaryk, Moral Complicity at Court: Who Decides, The Witherspoon Institute, Apr. 6, 2016, http://www.thepublicdiscourse.com/2016/04/16709/.  

[13] Matthew Kacsmaryk, The Abolition of Man…and Woman, National Catholic Register, June 24, 2015, http://www.ncregister.com/daily-news/the-abolition-of-man-…-and-woman.  

[14] Id. (emphasis in original).

[15] Matthew Kacsmaryk, The Inequality Act: Weaponizing Same-Sex Marriage, The Witherspoon Institute, Sept. 4, 2015, http://www.thepublicdiscourse.com/2015/09/15612/.  

[16] See id.

[17] Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=matthew+kacsmaryk&order=desc&sort=D (last visited Dec. 11, 2017).

[18] See id.

Karen Gren Scholer – Nominee for the U.S. District Court for the Northern District of Texas

Compared to previous presidents, President Trump has nominated fewer women and racial minorities to the bench.  As such, the nomination of Karen Gren Scholer is notable: as Scholer is not a former nominee of President Obama, but is an Asian American woman.

Background

Scholer, nee Karen Anne Gren, was born in 1957 in Tokyo, Japan.  Scholer received a Bachelor of Arts at Rice University in 1979 and a Juris Doctor from Cornell University Law School in 1982.  After graduating from law school, Scholer joined the Dallas law firm Strasburger & Price, LLP. as an Associate.  In 1989, Scholer was named a Partner at the firm.

In 1996, Scholer left Strasburger & Price to join Andrews & Kurth LLP. as a partner.  She served as Partner for four years, and as Of Counsel for a few months.  In 2000, Scholer was elected as a Republican to the 95th Judicial District Court in Dallas.  Scholer was re-elected unopposed in 2004.

In 2009, Scholer left the bench to join the Dallas office of Jones Day as a Partner.  In 2014, she left Jones Day to become a Principal at the firm Carter Scholer PLLC.  She currently serves in that capacity.

In 2014, Scholer also began work as an arbitrator and mediator for the American Arbitration Association.  She also serves in that capacity presently.

On July 30, 2014, Scholer applied to Senators John Cornyn and Ted Cruz for a vacancy on the U.S. District Court for the Northern District of Texas.  In April 2015, Scholer also applied for a vacancy on the U.S. District Court for the Eastern District of Texas.  After interviews with the Obama Administration and Democratic Representatives Marc Veasey and Eddie Bernice Johnson, Scholer was nominated to a vacancy on the U.S. District Court for the Eastern District of Texas on March 15, 2016.[1]  Scholer’s nomination had the support of Cornyn and Cruz[2] but attracted opposition from East Texas Republican Rep. Louie Gohmert due to Scholer’s base in Dallas.[3]  While Scholer received a hearing before the Senate Judiciary Committee, her nomination was never approved and died at the end of the Obama presidency.

History of the Seat

Scholer has been nominated to fill a vacancy on the U.S. District Court for the Northern District of Texas.  The Northern District is facing a high level of turnover, with four of the twelve allotted judgeships for the District currently vacant, and a fifth scheduled to open later next year.  The high level of vacancies have been exacerbated by the Republican Senate’s failure to confirm three Obama nominations to the Northern District in the 114th Congress.

The vacancy Scholer has been nominated to fill opened on May 1, 2016, when Judge Jorge Antonio Solis moved to senior status.  On March 15, 2016, Obama nominated James Wesley Hendrix, the 39-year-old appellate chief of the U.S. Attorney’s Office for the Northern District of Texas to fill the vacancy.[4]  While Hendrix had the support of his home state senators and received a hearing in September 2016, his nomination never moved to the floor and thus was not confirmed.  Hendrix was not renominated to the Court by President Trump.

After the election of President Trump, Scholer applied again for the vacancies on the Eastern and Northern Districts of Texas.  Upon Cornyn and Cruz’s recommendation, Scholer was interviewed by the White House in May 2017, and officially nominated on September 7, 2017.

Legal Experience

Scholer has spent virtually her entire legal career as a civil litigator.  In her initial position at Strasburger & Price LLP., Scholer focused on personal injury cases, specializing in the defense of product liability cases.  For example, Scholer was part of the defense team in a product liability action against General Motors based on allegedly defective three-point seatbelts in the backseats.[5]  Scholer also defended Budget Rent a Car in a personal injury action over an injury caused by a falling suitcase on a shuttle bus.[6]  Scholer continued this product liability work as a partner at Andrews & Kurth LLP.

After her eight years on the bench, Scholer joined the Dallas office of Jones Day as a partner in the complex tort and product liability section.  In this role, Scholer primarily handled the defense of Yamaha in a multi-district product liability action based on the defective design of the Yamaha Rhino off road vehicle.[7]

As a named partner at Carter Scholer PLLC., Scholer handles business tort and personal injury litigation.  Scholer also occasionally represents plaintiffs, notably representing the victim of a slip-and-fall to a successful settlement.[8]

Jurisprudence and Reversals

Scholer served two four year terms as a judge on the 95th Judicial District Court in Dallas.  In this role, Scholer presiding over civil cases in Dallas, including contract and tort cases.  Scholer was also briefly appointed by Governor Rick Perry to serve on the Tenth Circuit Court of Appeals of Texas for a single case.

Of Scholer’s more prominent cases, she presided over a medical malpractice trial where the plaintiff alleged that the defendant had negligently removed fat and skin creating infection in her sutures.[9]  Scholer presided over a jury verdict for the plaintiff in $291,000 in damages.  Scholer also presided over a jury verdict to the plaintiff in an unsafe workplace case brought by the employee of a public utility company.[10]  Scholer denied a defense motion for a new trial and entered judgment for the plaintiff.[11]

In her eight years on the bench, Scholer’s opinions have been reversed or criticized by a higher court in 19 cases.  On these, two are particularly notable:

City of Dallas v. VRC, LLC. – In this case, a towing company filed suit against a Dallas ordinance setting rates for non-consensual towing of vehicles, alleging that the rates were too low, and constituted a “regulatory taking.”[12]  The City argued lack of jurisdiction due to governmental immunity, and lack of ripeness.[13]  Scholer ruled against the City on both claims, allowing the case to move ahead.[14]  The Fifth Circuit Court of Appeals of Texas reversed, finding that there was no viable regulatory takings claim under either state or federal law.[15]

Ferguson v. Building Materials Corp. of America – This case involved a personal injury suit brought after an eighteen wheeler crashed into a building which collapsed on the plaintiff.[16]  Scholer granted summary judgment to the defendants in the case, finding that the plaintiff’s claims were judicially estopped.[17]  While the Fifth Circuit affirmed Scholer, the Texas Supreme Court reversed in a per curiam decision.[18]

Political Activity

Scholer has a long history with the Republican party, having been elected twice as a Republican to the state bench.  Scholer has also volunteered with the Travis County Republican Party between 1999-2010, and has been a member of the Texas Federation of Republican Women since 1999.

Overall Assessment

As noted with Judge David Counts, nominees put forward by presidents of both parties generally fare an easier time through the confirmation process.  For her part, Scholer does not have a paper trail of controversial statements, or any particularly unorthodox legal or judicial views.  While she does have a long history as a Republican, a partisan history, in and of itself, should not be disqualifying for the bench.  As such, a prompt confirmation should be expected for Scholer, who will be the first Asian American judge on the Northern District of Texas, when confirmed.


[1] Press Release, White House, President Obama Nominates Six to Serve on the United States District Courts (March 15, 2016) (on file at https://obamawhitehouse.archives.gov).

[2] John Council, Cornyn Pledges to Help Obama Seat Texas Judges, Texas Lawyer, March 28, 2016, http://www.law.com/texaslawyer/almID/1202752774603/.

[3] Press Release, Office of Rep. Louie Gohmert, Gohmert Objects to President Obama’s Eastern District of Texas Judge Nominee (April 7, 2016) (on file at https://gohmert.house.gov/news/documentsingle.aspx?DocumentID=398311).  

[4] See supra n. 1.

[5] Tarrantino et al. v. General Motors Corp. et al., Cause No. 86-12794, 14th Judicial District Court of Dallas County, Texas; Judge John Marshall; 1986-89.

[6] Simmons v. Budget Rent a Car, Civil Action No. 3:81-cv-01431-F, United States District Court for the Northern District of Texas, Judge Robert Porter, 1982-84.

[7] In re: Yamaha Motor Corp., Rhino ATV Products Liability Litigation, Master File No. 3:09-MD-2016-BC, Multi District Litigation in the United States District Court, Western District of Kentucky; Judge Jennifer Coffman, 2009-2013.

[8] Bearden v. Half Price Books, Cause No. 14-1168, 134th Judicial District Court of Dallas County, Texas; Judge Dale Tiller; 2014-15.

[9] Trebold v. Fowler, M.D., Cause No. 00-06073.

[10] Dennis v. Texas Utility Co, Inc. dba TU Electric Co., Cause No. 96-09957.

[11] See id.

[12] City of Dallas v. VRC, LLC., 260 S.W.3d 60 (Tex. App.-Dallas 2008 no pet.).

[13] See id.

[14] Id.

[15] See id.

[16] Ferguson v. Building Materials Corp. of America., 295 S.W.3d 642 (Tex. 2009).

[17] Id.

[18] Id.