The push to fill 120 federal judgeships purposefully left vacant under President Obama gets under way Wednesday, with the unveiling of a trio of nominees, all members in good standing of the conservative Federalist Society.
The Republicans have the votes to confirm them with a simple majority. Otherwise, if there were a 60-vote threshold, they wouldn’t stand a prayer’s chance of getting a lifetime appointment to the Sixth or Eleventh Circuit, or in the case of 38-year-old Damien Schiff, a 15-year appointment to the Court of Federal Claims, positioning him for the Ninth Circuit.
The liberal Alliance for Justice has surfaced disturbing allegations about two of these nominees that go beyond the traditional legal terrain of where they stand on stare decisis or executive power or labor relations. Their views about women, LGBTQ people, and even the environment are way beyond what we once considered the mainstream.
“It’s one thing to have extreme or strong political views,” says Nan Aron, AFJ’s president. “This is different. This is a character issue, and you can’t sugarcoat that. You can’t say it’s a political ideology.”
Packaging them together in what Democrats call a “triple threat” is unusual though not unheard of. In the case of Kentucky lawyer John K. Bush and former Alabama solicitor general Kevin Newsom, they’re ready to be teed up because they’re not bucking home state opposition from Democrats the way Trump nominees are in Michigan, Minnesota, and Indiana, where Democrats haven’t returned their blue slips, an archaic custom for home state senators to signal approval.
Louisville lawyer Bush, slated for the Sixth Circuit, is the most problematic. He appears at first to be a conventional corporate lawyer, but when he filled out his Senate Judiciary Committee questionnaire, he revealed he has a secret life as a blogger. He writes under the pseudonym G. Morris, an apparent homage to Gouverneur Morris, a founding father of New York and a staunch opponent of slavery.
So far, so good, except for what he posted on the blog, Elephants in the Bluegrass, which is run by his wife, Bridget Bush. He passed along rumors and fringe conspiracy theories from the alt-right, including anything he could find about Barack Obama’s relatives in Kenya. He equated slavery and abortion as “the two greatest tragedies in our country” perpetrated by the Supreme Court’s Dred Scott decision “and later in Roe.”
He wrote that “Mama” Pelosi should be gagged. And he criticized the Kentucky Supreme Court when it said it was unconstitutional to criminalize “consensual sodomy,” his term.
He got a big laugh, no doubt, when he repeated to an audience at a private club gonzo journalist Hunter S. Thompson’s observation about Louisville, that it’s “no town to be giving people the impression you’re some kind of f---got.” Bush belongs to a number of private clubs, including the Pendennis Club of Louisville, which was founded in 1881 and had its address changed when the street it was on was renamed Muhammad Ali Boulevard.
He also thinks New York Times Co. v. Sullivan was wrongly decided. The landmark 1964 case affirming that journalists are protected unless there is evidence they acted out of malice is of particular concern now that we have a president who says he wants to make it easier to sue journalists.
Nan Aron with the AFJ calls Bush “totally unsuited” for a lifetime appointment on the federal court. She says he’s “intolerant, holds deep-seated prejudices, is disrespectful of the rights of others, and even stoops to the use of abusive language and slurs targeting women and LGBTQ people.”
She says California’s Damien Schiff, a senior attorney at the Pacific Legal Foundation, “is only slightly more egregious” than Bush, not a compliment. Schiff too is a prolific blogger and writes under his own name. In a post about Justice Anthony Kennedy, who was appointed by President Reagan but doesn’t always toe the conservative line, Schiff called Kennedy “a judicial prostitute” for “selling his vote as it were to four other Justices in exchange for the high that comes from aggrandizement of power and influence, and the blandishments of the fawning media and legal academy.”
Schiff has also pontificated on “Teaching ‘gayness’ in public schools,” criticizing schools for not only teaching that bullying of homosexuals is wrong “but also that the homosexual lifestyle is a good, and that homosexual families are the moral equivalent of traditional heterosexual families.”
Schiff has called Earth Day “a threat to individual liberty and property rights,” and blames environmental regulations for contributing to California’s drought. He favors selling off public lands and once suggested Yosemite be turned over to Disney. The Court of Federal Claims, where Schiff is likely to be confirmed for a 15-year term, mainly handles environmental and regulatory claims.
Alabama’s Kevin Newsom is probably the least egregious of the three in the sense of having the shortest rap sheet in the eyes of Democrats. As solicitor general, he argued for more leniency to put people to death in capital cases, including minors, filing an amicus brief on behalf of the state of Alabama in the case where the Supreme Court ruled the death penalty unconstitutional for minors.
The fact that he is positioned for a lifetime appointment on the Eleventh Circuit is what rankles Democrats. The vacancy occurred in 2013, and in February 2016 Obama nominated U.S. District Court Judge Abdul Kallon from Birmingham to fill the seat. He would have been the first African-American from Alabama to sit on the Eleventh Circuit. He never got a hearing. Sen. Jeff Sessions, who is now attorney general, never returned the blue slip that would have facilitated Kallon’s confirmation.
Republican leader Mitch McConnell held the seat in abeyance for a year, just as he did with the late Justice Antonin Scalia’s open seat, and now he’s doling out these coveted positions. G. Morris, aka John K. Bush, will be the second Kentucky judge McConnell places on the Sixth Circuit. The first was Amul Roger Thapar, an Indian-American who was on one of President Donald Trump’s lists as a potential successor to Scalia. Thapar was confirmed last month with 52 Republicans and 0 Democrats, the pattern that’s likely to continue as McConnell methodically fills those seats he kept warm for Trump.