Senator Wyden’s Vile Attack on Federal Judiciary

Published February 17, 2023

National Review Online

On the Senate floor yesterday, Senator Ron Wyden of Oregon launched a vile attack on federal district judge Matthew Kacsmaryk, the Fifth Circuit, and the Supreme Court.

Judge Kacsmaryk is the judge presiding over the lawsuit that the Alliance for Hippocratic Medicine has brought against the FDA’s approval of the abortion drug mifepristone. Even though Kacsmaryk has not yet taken any action in the case, he has been the target of vicious abuse from the likes of Ian Millhiser.

1. In a prepared speech, Wyden, parroting Millhiser, lambastes Kacsmaryk as a “lifelong right-wing activist,” a “partisan ideologue,” an “anti-abortion zealot,” and “the most lawless judge in the country.” He calls the case “a rigged game.”

Never mind, as I pointed out in response to Millhiser, that the Fifth Circuit has so far affirmed Judge Kacsmaryk in every ruling that Wyden complains about. That just leads Wyden to attack the Fifth Circuit.

I’ll also highlight that in 2013 Attorney General Eric Holder—yes, that Eric Holder—awarded Kacsmaryk the Attorney General’s Award for Excellence for his work as a federal prosecutor.

Back in 2017, President Trump properly earned intense criticism for referring to a judge who ruled against him as a “so-called judge.” As I commented at the time:

It’s one thing to criticize a judge’s ruling or reasoning and to argue that the judge is abusing the authority of his judicial office. That’s entirely fair game, though something that a president generally ought to leave to others. It’s quite another thing to suggest that a judge doesn’t possess the legitimate authority of the office.

Wyden’s rhetoric is much worse than Trump’s. Wyden isn’t responding to any ruling, or even any action or statement, by Judge Kacsmaryk in the FDA case, so his screed comes across as a blatant effort to intimidate Kacsmaryk. Further, while I will charitably assume that Wyden does not intend to incite violence or threats of violence against Kacsmaryk, his wild rhetoric could easily do so:

This judge is not upholding the oath he took. He is not adhering to the Constitution. He is making a dangerous mockery of the rule of law. Something needs to be done about it.

2. On the “Something [that] needs to be done about it,” Wyden declares that “President Biden and the FDA must ignore” an injunction that Kacsmaryk might enter. Never mind that the usual routes of seeking immediate relief from the higher courts would be available to the Biden administration if Kacsmaryk were to rule against the FDA. These routes, Wyden asserts, are “almost certainly” futile:

The Fifth Circuit, which has little respect for precedent or the authority of the other two branches of government, will almost certainly uphold his ruling. Then the Roberts Court will almost certainly leave the ruling in place through the long and arduous appellate process.

Wyden grandiosely but wrongly compares himself to Abraham Lincoln on Dred Scott, but he has much more in common with Arkansas governor Orval Faubus’s defiance of desegregation orders. Wyden claims that Lincoln “called on others to ignore” the Court’s awful ruling in Dred Scott. But what Lincoln actually said in his first inaugural address (as well as in his previous comments on the Dred Scott ruling) is that a Supreme Court decision “must be binding in any case upon the parties to a suit as to the object of that suit.” Lincoln properly disputed that he was obligated to treat Dred Scott and its dual holdings as binding precedent on other matters, but he never argued that the ruling in Dred Scott itself could or should simply be disobeyed. (There are grounds on which he might have done so. My point here is simply that Wyden is utterly wrong to try to hide behind Lincoln.)

3. The Senate should promptly censure Wyden for his vile attack on Judge Kacsmaryk and the federal judiciary more broadly. Alas, that prospect is remote, as Senate majority leader Chuck Schumer himself thuggishly threatened Supreme Court justices over abortion:

I want to tell you, Gorsuch. I want to tell you, Kavanaugh. You have released the whirlwind, and you will pay the priceYou won’t know what hit you if you go forward with these awful decisions.

Given how volatile this matter is, I will emphasize what I hope is obvious: While Wyden’s comments deserve condemnation, all disagreement with him should be expressed peacefully.

Edward Whelan is a Distinguished Senior Fellow of the Ethics and Public Policy Center and holds EPPC’s Antonin Scalia Chair in Constitutional Studies. He is the longest-serving President in EPPC’s history, having held that position from March 2004 through January 2021.

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