The Volokh Conspiracy
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Another Judicial Ethics Story About Judge Kacsmaryk Falls Apart
Editors should withdraw any unpublished stories about judicial ethics to get a grip on reality.
About two weeks ago, the Washington Post published yet another story about Judge Matthew Kacsmaryk. There were two primary claims. First, the Post charged that Kacsmaryk wrote an article for the Texas Review of Law & Politics (TROLP), but when he was under consideration for the federal bench, he asked the journal to take his name off the article. Second, the Post claimed that Kacsmaryk failed to disclose this article to the Senate, and this was a breach of ethical standards. As soon as I read this article, I knew both claims were either false, or at best, misleading.
TROLP accepts submissions, like most law reviews, but a substantial chunk of its book includes invited articles. That is, the journal asks an author to write on something. In other words, an offer is made before the article is actually written. I have published four articles in TROLP. Two of them were solicited. One was something I pitched largely on the basis of my blog posts and an amicus brief, which was accepted. For three articles, I was given a green-light to publish non-existent scholarship. This approach is fairly common for symposium issues of law reviews. TROLP publishes invited pieces in most issues. And based on my records, I never actually signed some sort of publication agreement or copyright assignment. At most, I received an email of approval from the journal. That's how TROLP works. Professors at the University of Texas, Austin, could have easily confirmed this regular process to the press.
Without knowing anything about Kacsmaryk's particular situation, I concluded with a high degree of confidence that either (a) TROLP invited lawyers from First Liberty to write on a specific topic or (b) lawyers from First Liberty pitched TROLP on writing a piece on a particular topic. In either case, there was nothing written when the article was accepted.
I also concluded that the second facet of the Post's reporting was a non-story. DOJ routinely tells potential-judicial nominees to stop writing anything during the process. It would not surprise me that DOJ told Kacsmaryk to not publish anything new. And that request would have been easy enough to follow, if he didn't actually write the article.
This background brings us to the latest reporting in the Washington Free Beacon from Aaron Sibarium. He confirms everything I suspected about the Post's story.
The Post made much of the fact that Kacsmaryk submitted an early draft of the article, titled "The Jurisprudence of the Body," in early 2017 under his own name. The byline switch came that April, when he informed the Texas Review of Law and Politics that, "for reasons I may discuss at a later date," First Liberty attorneys Stephanie Taub and Justin Butterfield would coauthor the piece instead. Their names weren't anywhere on the first draft, the Post stressed, and it was Kacsmaryk who'd been corresponding with the journal. He also provided some edits on later drafts, according to emails reviewed by the Post.
But Taub and Butterfield told the Washington Free Beacon that they wrote the first draft themselves. Kacsmaryk, they said, had been brainstorming ideas with Taub, who was his research assistant at the time. "When his schedule became too busy to write an article, or even to review my outline," Taub said, "I took the initiative of drafting an article. I listed [Kacsmaryk's] name as the author of this and subsequent drafts because I assumed I was ghostwriting it for him." . . .
Taub's drafts of the article were mainly edited by Butterfield, he said. Kacsmaryk's primary contribution was serving as a liaison to the Texas Review of Law and Politics, with which he had institutional ties.
Kacsmaryk did not actually write the article, but gave credit to his junior colleagues. (Good for him!) Kacsmaryk continued to serve as a liaison with the editors due to his institutional connection to the journal. That's it!
The Free Beacon does not get into the nuances of the submission process. But the chronology in the piece establishes that the article was written after there was an acceptance. Kacsmaryk did not submit an article that he did not write, because he did not actually submit an article. Kacsmaryk did not take his name off an article he wrote, because he did not write the article. Kacsmaryk did not fail to disclose an article he wrote, because he did not write the article.
The Free Beacon also quotes Bethany Pickett, who worked with judicial nominees during the Trump administration. DOJ's Office of Legal Policy (OLP) routinely tells nominees to not publish anything during the confirmation process.
The Senate Judiciary Committee requires nominees to disclose all "published material" they have written or edited, any excerpt of which can be used against them. That is why, when someone is about to be nominated, the Justice Department tells that person to shut up.
"Our advice to nominees was to wind down their practices and not publish or give speeches while they were being considered for a federal appointment, even if they had made plans to do so up to that point," said Bethany Pickett, who worked on hundreds of judicial nominations in the Justice Department's Office of Legal Policy under former president DonaldTrump. "It would be common for any nominee not to author or further engage with a publication once being considered for the federal bench."
The Biden Administration has tapped legal scholars to fill certain positions. I suspect these nominees were given the same advice, and they put a pause on any unpublished pieces. There is nothing to see here.
Once again, a media story about judicial ethics falls apart. At this point, you should pause at least twenty-four hours before reacting to any story about a conservative judge. The media is so fixated on finding ethical scandals. Yet, they have to invent stories that are all smoke, and no fire.
The media is embarrassing itself. To continue with the theme of the day, editors should withdraw any yet-unpublished stories. Or call me for a reality check. Stop talking to the regular stable of legal ethics experts who give predictable answers.
