The Anatomy of a Washington Post Smear Campaign

The paper claimed conservative judge Matthew Kacsmaryk violated legal ethics. Ethics experts say otherwise.

District Court judge Matthew J. Kacsmaryk / Senate Judiciary Committee
May 1, 2023

On April 15, one week after Matthew Kacsmaryk suspended approval of the abortion pill mifepristone, the Washington Post published what it framed as a scandalous story about the Texas judge.

When he got word of his impending nomination in April 2017, the Post claimed, Kacsmaryk, then the deputy general counsel of the religious freedom group First Liberty Institute, removed his name from an article he had allegedly drafted for the Texas Review of Law and Politics, substituting the names of two of his colleagues for his own byline.

The switcheroo meant that Kacsmaryk did not have to list the article, which concerned religious conscience exemptions for abortion and transgender surgeries, on his Senate Judiciary Questionnaire. The revelations "raise questions" about whether Kacsmaryk "was seeking to duck scrutiny" of his views on hot-button issues, the story said—and prompted calls from Democratic lawmakers for an investigation.

The firestorm was fueled by prominent attorneys quoted in the Post, including Adam Charnes, a high-ranking official in George W. Bush's administration, who said it was abnormal and unethical for nominees to publish things they'd written under other people's names.

Almost every part of the story appears to have been misleading or false.

This report is based on dozens of interviews with experts on legal ethics from across the political spectrum, attorneys at First Liberty, and people involved in Kacsmaryk's nomination process. It suggests that Kacsmaryk did not write the article in question but instead supervised the attorneys drafting it, stepping back from that project—and many others—once his nomination was imminent.

This is a common practice, ethicists and people who have worked with judicial nominees said. And it hardly constitutes a duplicitous dodge.

"I'm not aware of a canon of judicial ethics that this would violate," said Carissa Hessick, a legal ethicist at the University of North Carolina, who has criticized restrictions on abortion and warned the right to gay marriage could be "blown up" by the Supreme Court. "It's not unusual or strange."

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 Donald Trump. "It would be common for any nominee not to author or further engage with a publication once being considered for the federal bench."

Though Pickett did not work directly on Kacsmaryk's nomination, three people who did confirmed that Kacsmaryk was given the same advice. The decision to take his name off the article—in which he played only a minimal role—was in keeping with Justice Department norms throughout the years.

What emerges is a picture of a national newspaper framing a common and recommended practice as an act of deception. With Justices Clarence Thomas and Neil Gorsuch now facing ethics allegations of their own, the story is a cautionary tale of how overzealous reporting can insinuate scandal where none exists—especially when the target is a conservative judge.

Kacsmaryk has been under the microscope since he issued an order halting the Food and Drug Administration's decades-old approval of mifepristone, effectively outlawing the drug. The ruling, which the Supreme Court stayed in mid-April, sparked outrage from liberals and even some conservatives, who said it was an act of judicial overreach. Adam Unikowsky, a former law clerk to Antonin Scalia, went so far as to imply that the decision threatened the rule of law itself, calling Kacsmaryk's reasoning "egregiously wrong."

The Post story leaned into this bipartisan backlash. It included quotes from Adam Charnes, the principal deputy in former president Bush's Office of Legal Policy, and Alex Aronson, a former chief counsel to Sen. Sheldon Whitehouse (D., R.I.), arguing it would be unethical for a hypothetical nominee to remove his name from an article.

They were the only attorneys in the story who expressed that view, which does not appear to be the consensus position among legal ethicists. Even liberals and moderates were skeptical that the byline switch raised any red flags, telling the Free Beacon it was neither unusual nor untoward.

"I know of other nominees—not for President Trump—who have taken their names off articles upon being nominated," Hessick, the University of North Carolina professor, said. "Potential nominees are explicitly told to stop publishing."

William Dailey, an ethics expert at the University of Notre Dame who writes occasionally for the liberal Catholic magazine America, said he didn't "see what the ethical objection would be." And Brian Frye, a legal ethicist at the University of Kentucky, said the name change would be problematic only if Kacsmaryk was the original author.

It "doesn't seem duplicitous to take your name off something you didn't actually write," Frye said, adding that he was a registered Democrat who doesn't agree with Kacsmaryk "about anything."

Charnes did not respond to a request for comment.

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."

The Post did send First Liberty an inquiry addressed to Taub and Butterfield, according to emails reviewed by the Free Beacon. First Liberty responded on their behalf, telling the paper that Taub and Butterfield wrote the article and providing documentation of their involvement, some of which the Post mentioned, albeit with skepticism. Butterfield also said that the paper never contacted him directly—even though it had been given his cell phone number, according to Butterfield and another person with knowledge of the situation.

The Post’s director of communications, Azhar AlFadl Miranda, declined to answer specific questions about the paper’s reporting, saying only that the "responses from the First Liberty Institute are captured in our story."

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.

"It made sense for Kacsmaryk to be the point man for the article," the journal's former editor in chief Aaron Reitz said, "because Kacsmaryk himself had worked on the Review while a student at [University of Texas] Law and had an established relationship with our journal." Hiram Sasser, First Liberty's executive general counsel, and Mike Berry, its vice president of external affairs, corroborated that account.

The article did not advance a novel legal argument, much less take positions Kacsmaryk hadn't already taken publicly. It was largely based on research Taub had conducted for an amicus brief in Stormans, Inc. v. Wiesman, a Supreme Court case involving religious conscience rights, Butterfield said. The article cited many of the same sources as that brief—which Kacsmaryk did include on his Senate Judiciary Questionnaire—as well as an essay Kacsmaryk had published in First Things, which he also included, according to a review of the documents' footnotes.

"All the content in that article was disclosed through some other citation," Sasser said.

Even if it wasn't—and even if Kacsmaryk had written the article himself—most experts agreed he wouldn't have done anything wrong. The Senate's rules apply only to articles that have been published or edited under a nominee's own name, Pickett, Dailey, and Hessick said, in part because a more exacting standard would be unworkable.

Ghostwriting is par for the course in the legal profession, and the attorneys listed on a brief often had unattributed help drafting it. If nominees had to disclose ghostwritten or ghostedited material, the Senate questionnaire would be nearly impossible to fill out.

"This broad interpretation being advanced—to disclose everything a nominee has ever touched—is inconsistent with the Senate's policies and practices," Pickett told the Free Beacon. "If that were the rule, every nominee who has ever served on a law journal would need to list all of the articles they ever edited."

Such a standard would pose problems for liberals and conservatives alike. After all, Fifth Circuit appellate judge James Ho noted in an April speech, "former Senate lawyer Stephen Breyer was not required to disclose everything he ghostwrote for Senator Ted Kennedy."

The only ethics expert who said Kacsmaryk should have disclosed the article was Frye. Judges should avoid "even the appearance of impropriety," Frye argued, and though the name change itself wasn't objectionable, Kacsmaryk's failure to list the article could still raise eyebrows.

But Frye also said that Kacsmaryk hadn't violated any rules. At the end of the day, Frye wrote in an email, a nominee's "obligation is to provide what the Senate requested. Nothing more & nothing less."