June 18, 2019 - Issue: Vol. 165, No. 102 — Daily Edition116th Congress (2019 - 2020) - 1st Session
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Nomination of Matthew J. Kacsmaryk (Executive Calendar); Congressional Record Vol. 165, No. 102
(Senate - June 18, 2019)
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[Pages S3643-S3645] From the Congressional Record Online through the Government Publishing Office [www.gpo.gov] Nomination of Matthew J. Kacsmaryk Mrs. MURRAY. Mr. President, I come to the floor today to oppose Matthew Kacsmaryk's nomination to the U.S. District Court for the Northern District of Texas. Mr. Kacsmaryk is another example of an extreme choice by President Trump to jam courts with individuals who have put their political views above the law and use their positions of power to chip away at people's rights. Not only are Mr. Kacsmaryk's views hateful and out of the mainstream, but his history of attacking vulnerable communities shows me he will not be a fair and impartial judge. He has fought tooth and nail against any protections for LGBTQIA individuals and has devoted his career to stripping this community of these fundamental rights. Mr. Kacsmaryk does not believe title XII of the Civil Rights Act includes sexual orientation and gender identity. He opposed the Supreme Court's ruling in Obergefell, which affirmed that same-sex couples have the right to marry under our Constitution, and he opposes the Equality Act. He believes this bill will ``weaponize Obergefell.'' The Equality Act builds on existing civil rights laws to expand anti-discrimination protections, to ensure members of the LGBTQ community cannot be fired or evicted from their homes, providing them with the same protections afforded to those who are discriminated against based on their race, religion, age, disability, and more. He believes healthcare providers should be able to discriminate-- discriminate--against patients based on gender identity or sex stereotyping, and he even supports discrimination against our children. Mr. Kacsmaryk not only opposes protections for transgender students, he has even argued that being transgender is ``delusional.'' He has questioned whether States can ban conversion therapy practices, which are dangerous. They are discredited by the medical community, and they have led to depression and suicidal behavior in young people subjected to these practices. Mr. Kacsmaryk claims that his hateful views have to do with religious liberty, but his own words show his true colors. When Republicans and Democrats in Utah agreed on employment and housing nondiscrimination protections based on gender identity and sexual orientation, Mr. Kacsmaryk opposed them, even as countless religious organizations supported that bill. Was religious liberty his main point of opposition? No. Instead, he argued businesses should be able to discriminate based on a person's sexual orientation or gender identity because, in his view, this community does not deserve the same protections as other communities who are often discriminated against. Mr. Kacsmaryk has said there is a ``clash of absolutes'' between LGBTQIA rights and those who want to discriminate in the name of religious liberty. This is not a view of someone who can be impartial and fair. Not only are his views on nondiscrimination based on sexual orientation and gender identity concerning, I am also very alarmed by his record as a fervent crusader against women's reproductive rights and for the far-right position that someone else's ideology is more important than a woman's ability to make her own personal medical decisions. If his arguments had won the day in court, a woman trying to get contraceptive care could face barriers thrown up at her by her employer or even by her pharmacy, all because someone else thinks that their beliefs matter more than a woman's own personal decisions about her own healthcare. Mr. Kacsmaryk's extreme hostility to women's reproductive rights is also on display in his own writings outside of the court. He wrote that the court cases affirming those rights--the historic rulings that have defended women's access to birth control and their right to safe, legal abortion--were responsible for removing a ``pillar of marriage law.'' Under any other administration, this truly disturbing ideological track record would be alarming. Unfortunately for President Trump and Vice President Pence, it appears to be a prerequisite. The Trump-Pence administration has taken every opportunity to undermine women's health and reproductive rights. And we have seen far-right Republicans across the country joining them, from State legislators working to pass extreme, harmful abortion restrictions to Republicans here in DC working to jam through extreme, harmful judicial nominees, like Mr. Kacsmaryk, who they hope will uphold blatantly unconstitutional restrictions on women's rights to safe, legal abortion and ultimately take away that right by overturning Roe v. Wade. I have also been inspired by the people around the country who are speaking up and taking a stand against those extreme views. If we keep making our voices heard against this nominee and Republican efforts to undermine women's reproductive rights more broadly, we can stop these attacks and ensure that every woman has the ability to make her own decisions about her body. I am here today to urge my colleagues to join us in rejecting this nominee. I yield the floor. The PRESIDING OFFICER. The Senator from Wisconsin. Ms. BALDWIN. Mr. President, I rise this afternoon to urge my colleagues to oppose the confirmation of Matthew Kacsmaryk to be U.S. District Judge for the Northern District of Texas. I believe that every individual we consider for a lifetime appointment to serve on the Federal bench should have the demonstrated legal acumen and experience but also a commitment to ensuring fair treatment for anyone who might come before their court. With a troubling record of professional work and personal statements attacking lesbian, gay, bisexual, and transgender people, Mr. Kacsmaryk fails this test, [[Page S3644]] and the Senate must reject his nomination. Mr. Kacsmaryk currently serves as deputy general counsel of First Liberty Institute, and in that role he has challenged the constitutionality of the Affordable Care Act, argued against marriage equality, supported schools in barring transgender students from using restrooms consistent with their gender identities, and opposed a State law requiring that pharmacies stock emergency contraception. My colleagues may recall another nominee associated with this organization, Jeff Mateer, who was First Liberty's general counsel until 2016 and was nominated by President Trump for a judgeship in the Eastern District of Texas. Mateer's nomination was ultimately withdrawn in light of his public statements hostile to LGBTQ people, including that same-sex marriage is ``disgusting'' and transgender children are a part of ``Satan's plan.'' Mr. Kacsmaryk's statement and writings evince a similar hostility to LGBTQ people and to equality. He has repeatedly made claims that dismiss the reality of LGBTQ people's lives and experiences. For example, he wrote a 2015 piece entitled ``The Inequality Act: Weaponizing Same-Sex Marriage,'' in which he suggested that the movements for LGBTQ and reproductive rights are grounded in ``the lie that the human person is an autonomous blob of Silly Putty unconstrained by nature or biology, and that marriage, sexuality, gender identity, and even the unborn child must yield to the erotic desires of liberated adults.'' In a September 2015 radio interview, he argued that the movement for LGBTQ equality is part of a sexual revolution that ``has been typified by lawlessness and just a complete refusal to obey basic rule of law principles.'' He has also been particularly disparaging of transgender individuals. For example, in August of 2016, he signed on to a comment to the proposed rule implementing the Affordable Care Act's nondiscrimination provisions. Arguing against the proposal's protections for people based on gender identity, the commenters wrote that transgender people are suffering from a ``psychological condition in need of care'' and are ``not a category of persons in need of special legal protections.'' They further cite one psychiatrist's opinion--just one psychiatrist-- that a transgender person's understanding of who they are is ``appropriately described as a delusion.'' Furthermore, in an interview discussing that same rulemaking, Mr. Kacsmaryk characterized healthcare protections for transgender people as being ``on the Obama Administration's `bucket list' of aggressive sexual revolution items.'' Finally, Mr. Kacsmaryk has criticized efforts to protect LGBTQ people from discrimination, even those that have been supported by both faith groups and progressive organizations. In a September 2015 article about the adoption of Utah's nondiscrimination law, he called that effort ``a bad idea . . . primarily for the problem of the protected class. Once a protected class is defined to be equivalent to race, it takes on a much heavier atomic weight.'' These are not words and actions of an individual whom we can trust to serve as a neutral arbiter who will recognize the humanity and dignity of everyone who comes before him. We have heard from hundreds of diverse organizations that oppose his confirmation to a lifetime appointment to the Federal bench, but perhaps most importantly we have heard from dozens of parents of transgender children from all over the country. They write: Hundreds of thousands of children and adolescents throughout this country are transgender, like our kids. So are well over a million adults. They deserve to be treated with respect and dignity--and to trust that when they walk into a courtroom they will be treated fairly. Confirming [Mr. Kacsmaryk] as [a federal judge] would send a damaging and dangerous message that the dignity of children like ours does not count in the courts, or in the U.S. Senate. I note that this is June. This is the month where we mark LGBTQ pride, celebrating the contributions of LGBTQ people and recognizing the work that remains to be done to ensure full and equal treatment for all people. This Pride Month, I urge my colleagues to send a message to those children, their parents, the broader LGBTQ community, and the country that they do count--that they count, they matter, and we hear their voices. And please reject this nominee. Thank you. I yield back. The PRESIDING OFFICER. The Senator from Pennsylvania. Mr. CASEY. Mr. President, I would ask unanimous consent to speak as in morning business. The PRESIDING OFFICER. Without objection, it is so ordered. Mr. CASEY. Mr. President, I rise today to discuss one of the judicial nominations we are considering. We are on the floor this afternoon to discuss the nomination of Matthew J. Kacsmaryk to be a U.S. district judge for the Northern District of Texas. We know that under the Senate rules we are now operating under, judicial nominees are receiving just 2 hours of what is called postcloture consideration, and for that time on the floor, we are considering a lifetime appointment to be on the Federal district court bench or to be a judge on one of the circuit courts. These are lifetime appointments, and to have just 2 hours on any nomination I don't think is enough time--I think a lot of Americans agree with me--but maybe even more so when you have a nominee whose views are, to be understated for a moment, troubling, views about judicial philosophy or a judicial philosophy and--a philosophy that I think a lot of Americans would find extreme. In this case, the nomination of Mr. Kacsmaryk is a prime example of why these nominees for lifetime appointments warrant a longer time for review. Again, I think that is an understatement. Even at a time when we are on a regular basis considering nominees who fall outside of the mainstream and who tend to fall in a place, in terms of legal philosophy, that a lot of Americans would find very concerning--even at a time when we have considered a lot of nominees I would consider outside the mainstream, Mr. Kacsmaryk's nomination is particularly troubling. I will use just two examples, briefly. The first example is his hostility to women's access to safe, affordable, and FDA-approved contraception. So many Americans--I think long before the Affordable Care Act but certainly in light of the Affordable Care Act--consider access to contraception that is safe, affordable, and FDA-approved--well, I think most Americans would consider and should consider that part of a basic healthcare package. That is the way it ought to be. But I would hope that a judge would at least recognize that it is fundamental to women's healthcare. Unfortunately, I don't think this nominee does, and that in and of itself is troubling. The second example--and these are only brief overviews in the interest of time--is Mr. Kacsmaryk has repeatedly disparaged and attacked the LGBTQ community. In a public comment in 2016 to the Centers for Medicare & Medicaid Services, which is part of the Department of Health and Human Services and is known as CMS, Mr. Kacsmaryk argued that transgender individuals suffer from a ``psychological condition in need of care'' and suggested that being transgender was a ``delusion.'' I have to ask--a delusion? Where does he come up with that? I don't know where one comes up with that kind of analysis. It doesn't make sense to most Americans. Prior to that, Mr. Kacsmaryk wrote an article about the Equality Act, which is bipartisan legislation that is before the Senate. The Equality Act would have the effect of--these are my words; this is not a full description of it--have the effect of catching up, in terms of the legal protections provided to Americans who happen to be gay or lesbian, bisexual, transgender--have the protections afforded to them catch up to those provided to other Americans. We finally made progress. More than 50 years ago now, we had the Civil Rights Act and other legislation over time that provided more and more protection over time to more Americans. Unfortunately, we don't have a similar measure of protections for Americans who happen to be LGBTQ. It is literally the case today that in some States, if you are gay or lesbian, you could be married in one hour of the day or on one day and the next day or the next hour be fired, and that would be permissible under law. So there are protections for employment and for access to education and housing--the full [[Page S3645]] measure of American life. The Equality Act would ensure those protections. That is not law yet, and that is why we have to pass it by way of Federal law. With that background, I want to go back to what I previously stated. Mr. Kacsmaryk wrote an article that suggested that the Equality Act, which I described, would ``weaponize'' the Obergefell decision. That was the landmark decision that allowed same-sex couples to marry. He said the Equality Act would weaponize that decision, while in this particular writing making reference to a ``long war ahead'' when discussing LGBTQ rights in a post-Obergefell America. So in America after the Obergefell decision, which allowed marriage equality and which made that part of our Federal law, thank goodness, after a long time--he believed that the Equality Act would be part of a ``long war ahead,'' when discussing that future in America. That doesn't make sense to me. I don't think it makes sense to a lot of Americans. I think most Americans believe that decision for marriage equality was an advancement where the circle of protection is growing, as it ought to. For too long, that circle was very small--until we had some breakthroughs over the last 50 years. Fortunately, marriage equality-- the right to marry, the right to spend the rest of your life with someone you love of the same sex--was finally enshrined into law by a Supreme Court decision. But this nominee seems to believe that the Equality Act would ``weaponize.'' I don't know where you come up with words like that--``weaponize,'' ``war.'' It just doesn't seem to fit in the America I think most people believe in. As this is playing out, it just so happens--and this is offensive. I hope it wasn't intentional. I don't have any reason to believe it was intentional. But it just so happens that the majority has this particular nomination on the floor when we are talking about these concerns about LGBTQ Americans and a particular nominee or maybe more than one nominee--I am here to talk about just one. But this is all playing out this month in the midst of celebrating LGBTQ Pride Month. So that is particularly offensive. Again, I will state for the record that I don't have evidence that it was intentional to consider someone with those views at this particular time, but it is nonetheless offensive because of the timing. The LGBTQ community had to sacrifice so much for so long in their fight for equality and civil rights in the United States of America, and we have a lot more work to do. As I indicated, the Equality Act is not yet law. Even though it is slightly bipartisan so far, we need to grow that bipartisanship so we can get it passed here in the Senate. I think LGBTQ Americans--frankly, all Americans--deserve better than a nominee who suggested that the Equality Act ``weaponizes'' the right to marry the ones they love. I think our country deserves a judge better than that, even if it is just for one particular Federal district court. I also believe that Americans deserve a better nominee than Mr. Kacsmaryk--maybe especially on these issues that I have raised but generally, as well. They deserve a nominee who respects and will protect the rights of all Americans, especially those Americans who have been the subject of ongoing, continuous discrimination--in this case, LGBTQ Americans. That discrimination has not abated or been ripped out by the roots because we have advancements like the right to marry or advancements in law. That discrimination continues. In fact, it is protected in some ways by the laws of some States, where you can fire someone simply because they are gay and do that with impunity. The discrimination continues by way of hateful acts that people undertake, but also the discrimination continues by way of law, as well. We should have judges in every district court, in every circuit court, in every court in the country--no matter what level of judicial office we are talking about--who will respect and protect every single American. In this case, I think you have a nominee who is not just outside of the mainstream but way outside of the mainstream, and I think that is why--so far, at least--he has been the subject of bipartisan opposition, and that is pretty rare around here, as many know. He is too extreme for this appointment. I would hope that my colleagues would vote against him. I know we had one vote already. I say all this as someone who has worked for a long time in a very bipartisan, collaborative way to appoint district court judges in Pennsylvania over and over. Those judges have had the support of Senator Toomey, as well as my support. A Democratic Senator and a Republican Senator have worked together on a number of appointments. We are getting close to 20 now, I think, since we have served together since 2011. I think we are at 19, if I haven't lost count. That means that we both have worked together to review, to scrutinize, and to decide whether to support a judge who might come from a Democratic nomination and might be supported by me and by my office, as well as a nominee supported by my colleague Senator Toomey. Over time, that means that Democratic judges, or someone nominated by a Democratic Senator and a Democratic White House a couple of years ago, and Republican nominees, nominated by a Republican Senator and a Republican White House, have been given consideration, review, and then confirmation. I am someone who takes his responsibility seriously. I have a long and distinguished record of working in this process to make sure that we get Federal district court judges from different points of view nominated by both Senators of both parties who meet that test, not judges who just meet the test of competence but also meet the test of being within the mainstream. Again, this means a judge who will respect and protect every single American. I think that is not asking too much of any nominee, no matter what district court. I yield the floor. I suggest the absence of a quorum. The PRESIDING OFFICER (Ms. McSally). The clerk will call the roll. The bill clerk proceeded to call the roll. Mrs. FISCHER. Madam President, I ask unanimous consent that the order for the quorum call be rescinded. The PRESIDING OFFICER. Without objection, it is so ordered.
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