There Are Dozens of Brett Kavanaughs Haunting the Lower Courts

By Charles Pierce, Esquire

18 July 18

And they'll be there for generations.

ssuming we can do the job at all, the task of fumigating American democracy from what modern conservative Republicanism has done to it, which naturally includes the elevation to the presidency of a vulgar talking yam, is going to take decades, if not the odd century.

While everyone is paying attention to what’s going on in the White House, what has been done through the years to the federal judiciary will be a stubborn infection in the body politic for as close to forever as we are likely to experience. The lower levels of the federal court system are turning into the wild kingdom. From Mark Joseph Stern over at Slate:

James Ho, the judge in question, sits on the 5^th U.S. Circuit Court of Appeals. He has a staunchly conservative background, serving as Texas solicitor general during the state’s legal campaign against the Obama administration and volunteering for the anti-LGBTQ, anti-abortion First Liberty Institute. Ho has also asserted that the U.S. should “abolish all restrictions on campaign finance.” It was no surprise, then, that in his very first opinion in April, Ho attacked the city of Austin’s limits on candidate contributions. In a strikingly cynical rant, he suggested that wealthy people must buy off politicians in order to protect themselves from “regulators.”

“You must realize that, if they want to pollute the water and the air, very rich people are forced to buy politicians on the cheap. I am not an ideological maniac.”

But this polemic pales next to to Ho’s latest judicial harangue, which places Roe v. Wade squarely in his crosshairs. The case involves a Texas law that requires the cremation or burial of “fetal remains,” which Whole Woman’s Health challenged in court. In January, U.S. District Judge David Alan Ezra blocked the latest iteration of Texas’ fetal burial rule, ruling that it likely imposed an “undue burden” on a woman’s right to abortion access. Under current precedent, that is a sensible decision; after all, the requirement creates no benefit for women, while passing on substantial costs to patients and clinics. Texas, however, argues that the fetal burial rule will not saddle clinics with extra costs, because the Texas Conference of Catholic Bishops has offered to bury fetal remains for free, or at reduced cost.

Wait. What? The Texas Conference of Catholic Bishops is now in the fetal burial business? Is that coming out of the collection baskets of a Sunday? If the state wants to pass this cruel and stupid law, then let the state pay for it.

To determine the veracity of this offer, Whole Woman’s Health served a subpoena on the conference requesting documents relating to fetal burial. The conference provided many documents but refused to turn over about 300 internal communications, alleging a First Amendment right to keep them secret. A magistrate judge rejected this First Amendment claim, so the conference appealed to Ezra. At noon on Sunday, June 17, Ezra rejected the appeal and gave the conference 24 hours to fully comply with the subpoena.

Things were looking bad for the bishops there for a moment. But, ah, there is always the Fifth Circuit, a notorious nesting spot for the federal judiciary’s more exotic conservative fauna. For example, Judge Edith Jones sits on that panel like a cat’s curse. But it was the rookie, Judge Ho, who, in concurring with Jones’s nonsense, took home the House Cup for this particular chronic ward.

“The First Amendment expressly guarantees the free exercise of religion—including the right of the Bishops to express their profound objection to the moral tragedy of abortion, by offering free burial services for fetal remains. By contrast, nothing in the text or original understanding of the Constitution prevents a state from requiring the proper burial of fetal remains.”

But then, as Stern points out, Ho went after Judge David Allen Ezra, whose previous decision the Fifth Circuit had decided to reverse.

Those proceedings are chronicled in Judge Jones’s comprehensive opinion for the Court. And they are troubling. They leave this Court to wonder why the district court saw the need to impose a 24-hour mandate on the Bishops on a Sunday (Father’s Day, no less), if not in an effort to either evade appellate review—or tax the Bishops and their counsel for seeking review. They leave this Court to wonder if this discovery is sought, inter alia, to retaliate against people of faith for not only believing in the sanctity of life— but also for wanting to do something about it.

Judge Ho called Judge Ezra a religious bigot because of the way that Ezra had ruled on a perfectly ordinary discovery motion. (What in the hell does Father’s Day have to do with anything, inter alia or not?) Anyone who doesn’t think there’s a huge claque of federal judges frothing at the notion of overturning Roe—and, I would argue, Griswold—up to and including Good Neighbor Brett Cavanaugh hasn’t been paying attention over the past 30 years. And Judge Ho’s career is only now just getting under way.