The Senate is poised to confirm Judge John K. Bush to a lifetime appointment as a judge on the United States Court of Appeals for the Sixth Circuit. When it does so (the process is a foregone conclusion), Bush will become both the most appalling extremist on the federal bench, and a judge who lied to Congress.
As has been well reported, Bush has had long career as an extreme right-wing blogger, under his own name and under the pseudonym ‘G. Morris.’ This has led to significant liberal opposition and even a hashtag, #StopBush..
But what has gone unreported until now is how duplicitous, evasive, and outright deceptive Judge Bush was in defending the statements to the Senate, as revealed in the official record of his answers to questions senators posed to him.
Bush’s responses to Senators who pressed him on these statements indicate that he is unrepentant, uncooperative, and uninterested in the democratic process by which judges are confirmed.
For example, in 2008, Bush repeated Birther claims—made in the Birtherism-supporting World Net Daily—that “Obama’s kin” living in Kenya was a criminal. He also repeated a claim by Birther Jack Cashill that Obama didn’t write his book, Dreams from my Father.
Oh, but I’m not a Birther, Bush told the senators, “I usually relied upon readily available sources on the internet discussing topics that might be of interest to the blog’s readership.”
It just so happens that the only readily available sources were Birthers.
Then there was that time he reblogged a photo of a sign reading “Obama supporters vandalized-tresspassed [sic] and stole my Palin-McCain sign violating my 1st Amendment right to free speech. Do it again and you will find out what the 2nd Amendment is all about!!!”
That’s a pretty clear threat to shoot the Obama supporters, right? Oh no, just “political hyperbole” that “did not seriously threaten any physical harm,” Bush said.
I’m not sure which is worse: the extremism, or the preposterous explanations Bush gives for it.
Another example: Bush said that he scare-quoted the term “climate change” on a blog post not because he doesn’t believe it is real, but merely “to incorporate by reference specific views advanced by others about climate change.” Right.
On the Supreme Court’s decision in Obergefell v. Hodges that legalized same-sex marriage, Bush stated “I have not had occasion to study this decision of the Supreme Court in light of any methodology of constitutional interpretation.” Does anyone believe that statement, given under oath, to be true? A conservative firebrand who has opinions on everything has not even studied the case that held that gay, as well as straight, Americans have the constitutional right to marry? Really?
I studied that case the day it came out, I wrote half a dozen pieces on it, and I’ve since reread the opinion and dissents several times. And I’m just a columnist. Does Bush really mean for us to believe that a professional jurist with outspoken opinions on jurisprudence has not even studied the case?
And since it is patently unbelievable, does it matter that Judge Bush obviously (if unprovably) lied by claiming it?
But of course, Bush’s personal opinions aren’t supposed to matter. Like a dutiful schoolboy, Bush said, “If confirmed to the Sixth Circuit, I would apply Obergefell faithfully, as I would any precedent of the Supreme Court.” (He cut and pasted the same language in his responses regarding Roe v. Wade, legalizing abortion, and Loving v. Virginia, legalizing interracial marriage.)
That, as we have already seen, is also completely false. Already, an Arkansas court has said that Obergefell provided the right to marry, but not all the benefits of marriage: gay marriage may still be less equal than straight marriage. Two justices of the Supreme Court have agreed. No precedent, Obergefell or anything else, is so black-and-white that a judge’s opinion is irrelevant. Should it be applied broadly or narrowly? Should exceptions be made, or is the precedent iron-clad? Those are the real questions.
Judges answer such questions all the time, and Bush knows that. His rote, formulaic, and cut-and-paste answers betray a cynical disbelief in the value of the confirmation process itself. He knows that he has the votes to be confirmed, and so he can verbally spit on the Democratic senators who press him. His responses ooze contempt and disrespect for the constitutional process itself.
But the single worst instance of Bush’s contempt for the Senate came when Senator Al Franken pressed Bush on his statement that “the two greatest tragedies in our country—slavery and abortion—relied on similar reasoning and activist justices at the U.S. Supreme Court, first in the Dred Scott decision, and later in Roe.”
The meaning of this execrable statement is clear: slavery and abortion are the two greatest tragedies in our country. People on the hard right say so all the time. But pressed to explain it, Bush provided the preposterous “explanation” that Roe was tragic because “it divided the country” whereas Dred Scott was tragic because it “took away Mr. Scott’s freedom” and because of its “taking the issue of slavery out of the political process and leading to civil war.”
This explanation is even worse than the original statement it was meant to explain.
First, it is as transparently meretricious as Bush’s other statements to the Senate. Obviously, his blog post was analogizing abortion to slavery—pointing out its similarity, not its differences. He’s just embarrassed that his comment meant for the hard-right echo chamber looks a lot worse in the open light of day.
Second, wait a minute—so slavery should have been decided by the “political process?” Wasn’t Dred Scott tragic because it decreed that a human being was property? Wouldn’t it have led to the Civil War even faster had it decreed slavery unconstitutional?
In fact, the recourse to the “political process” is exactly what foes of reproductive choice and LGBT equality trot out all the time. It’s not that abortion is baby-killing and homosexuality is sin—it’s that “the people” should decide, not the courts. Once again, if you believe that, you probably graduated from Trump University. Now, all judicial nominees, liberal and conservative alike, evade difficult questions and repeat bromides that they will be fair, impartial, and respectful of precedent. The confirmation process has been an empty ritual for decades, but certainly since Judge Robert Bork discovered what happens when candidates actually engage in ideological discussions.
But Bush’s contempt is different. The transcript of his replies to the Senate Judiciary Committee should ring alarm bells. Most could not be proven to be perjury; they are just evasive and subjective enough to evade capture. But they are so baldly, shamelessly, transparently preposterous that they cannot be maintained to be true. Which means that he is also a liar.