[Congressional Record Volume 165, Number 102 (Tuesday, June 18, 2019)]
[Senate]
[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.