Justice Watch: An Alliance for Justice Blog

President Trump has nominated Damien M. Schiff, Senior Attorney at the Pacific Legal Foundation and member of The Federalist Society, for a seat on the U.S. Court of Federal Claims.  As noted in his Senate Judiciary Questionnaire, in a series of blog posts on both the Pacific Legal Foundation’s Liberty Blog and his own personal blog entitled Omnia Omnibus, as well as in other writings, Schiff repeatedly demonstrates his extreme views and his unfitness to serve as a judge.  

First, Schiff’s writings include personal attacks on the integrity of a sitting Supreme Court justice, advocates, and progressives.  This alone demonstrates he lacks the judicial temperament to serve as a judge.

Second, Schiff’s writings demonstrate a blatant disregard for the importance of critical rights and protections relied on by millions of Americans and an extreme devotion to political ideology.

Finally, Schiff, who has devoted his career to weakening environmental laws and other legal protections, has made clear that he believes the role of a judge is not to neutrally apply facts to the law.  Rather, he has called for a “reinvigorated constitutional jurisprudence, emanating from the judiciary” that would “overturn precedents upon which many of the unconstitutional excrescences of the New Deal and Great Society eras depend.” In achieving that goal, Schiff has called on President Trump to rescind environmental and regulatory reforms and has stated that OSHA is unconstitutional.

With his lack of judicial temperament, commitment to political causes, and extreme views on the role of the judiciary, no litigant can trust that Schiff would approach issues with an unbiased open mind.

Reproduced below is a just a sampling of Schiff’s disturbing writings:

Judicial Temperament    

• In a blog post entitled Kennedy as the most powerful justice?, Schiff calls Justice 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 continued, “[d]oesn’t Justice Kennedy’s toying or proclivity to concurrence-writing simply reveal a chameleon mind, without mooring in the rule of law or other principles extrinsic to its own fancy.”
• Appearing on the Lou Dobbs Tonight show, Schiff commented on a case he was litigating against the Environmental Protection Agency: “This is a problem with the agency across the board treating American citizens as if there [sic] were not American citizens, as if they were just slaves, and it’s atrocious.”
• In an op-ed, Putting good sense on the endangered list, Schiff ridiculed environmentalists for “push[ing] an agenda that has more to do with stifling productive human activity than fostering ecological balance.”  And, in an article entitled The Endangered Species Act Turns 40 – Hold the Applause, he attacked “a cottage industry of litigation that does more to enrich environmental activist groups than benefit the government.” In April 2017, he went so far as to claim, in an article entitled We can pursue Earth Day’s goals without endangering freedom that Earth Day was “a threat to individual liberty and property rights.”
• In a blog post entitled Ackerman and the Constitutional Canon, Schiff noted generally the “decadence and intellectual atrophy of a left-legal establishment that promises to undermine American constitutionalism.”
• In a blog post responding to a bumper sticker that read: “If you love your pet, why do you eat animals?” Schiff disparages vegetarians stating, “What can be better for a cow (a nonrational creature) than to serve as fuel for rational creatures?”

LGBTQ Rights

• While blogging from a conference on Federalism and the Separation of Powers, Schiff stated that he opposes equal rights for LGBTQ Americans.  He wrote, “I strongly disagree with the [sic] Lawrence.  He added, “[i]t is unfortunate that substantive due process has been so sullied by the Left that one cannot put forth a coherent and plausible originalist yet also substantive interpretation of the due process clause without being associated with the likes of Justice Douglas et al.”
• In a 2008 publication on The Federalist Society’s website, Schiff wrote an article entitled The Modern California Supreme Court: Progressivism and Practical Constraints criticizing gay marriage in California: “Far more significant in the Marriage Cases was the court’s adoption of strict scrutiny in cases where the government classifies people on the basis of sexual orientation.  This portion of the opinion will have far-ranging effects in the coming years.” He added that “[g]iven that California remains the epicenter of major battles between traditionalists, located for the most part in the state’s rural counties, and urban social liberals, a statewide rule requiring school districts, public health clinics, and all other government institutions to treat both groups with precise equality may result in serious conflicts in the decades ahead.”
• Also in 2008, Schiff wrote a post entitled Traditional Sexual Mores and the Permissible in Secular Discourse comparing racism and anti-LGBT animus, Schiff noted that “racism became a pariah position because (1) its enforcement, both legally and culturally, effected loathesome [sic] evils (and evils recognized as such by all sides), and (2) its supposed empirical foundations were without merit.  Similarly, when it comes to gay issues, many folks on the gay rights side would contend that (1) and (2) are present, which justifies the vilification of anti-gay-rights folks. I would disagree.”
• In a blog post titled Teaching “gayness” in public schools, Schiff criticized schools for teaching “not only that bullying of homosexuals qua homosexuals is wrong, but also that the homosexual lifestyle is a good, and that homosexual families are the moral equivalent of traditional heterosexual families.”  For this reason, he “objected to an anti-racism curriculum being taught in 1950s Arkansas” and “[u]ntil consensus is reached on the moral implications of homosexuality, any attempt on the part of the public schools to take sides on those implications is wrongheaded.”

Women’s Reproductive Health

• In a post entitled Abortion and “Secular Government” Schiff writes, “I am not saying that people in favor of legalized abortion are morally decrepit (although I would consider their view on this matter to be gravely in error).”
• In a post entitled Abortion and Equality, Schiff criticizes an article by Professor Reva Siegal by noting that her argument “presupposes that the unborn person is not a person entitled to any of the protections of the Constitution, including the Due Process and Equal Protection Clauses of the 14th Amendment.” He continues, “[c]learly, forbidding women to abort their unborn children . . . at most . . . might be a deprivation of liberty within the meaning of the [Due Process Clause], but that position, although conceptually less disagreeable than the [Equal Protection Clause] argument, is nevertheless without originalist merit.”
• In a 2008 blog post, Schiff commented favorably on a speech by Archbishop Chaput of Denver criticizing Catholics who supported Obama.  He wrote that Chaput’s “remarks underscore that abortion is a trumping issue, and that a pro-choice vote cannot be justified by reliance upon a candidate’s family or poverty or war policies.”

Affirmative Action

• In a 2007 law review article entitled Divisive Diversity at the University of Texas: An Opportunity for the Supreme Court to Overturn its Flawed Decision in Grutter, Schiff compared Grutter to Dred Scott, Plessy and Korematsu.  He concluded that “[t]he sad truth is that the United States has a sordid history when it comes to dealing with issues involving race. From Dred Scott v. Sandford, to Plessy v. Ferguson, to Korematsu v. United States, the Supreme Court has all too often been at the forefront of this ugly history. Yet, the Supreme Court has also righted each one of those wrongs. In the Slaughterhouse Cases, the Supreme Court recognized that the Fourteenth Amendment overturned Dred Scott by making all persons born in the United States citizens (and not chattels).  In Brown v. Board of Education, the Supreme Court overturned Plessy by holding that separate is inherently unequal.  And in Adarand Constructors v. Pena, the Supreme Court affirmed that strict scrutiny must be rigorously applied so mistakes like Korematsu do not happen again.  Grutter v. Bollinger should also be recognized as one of the Supreme Court’s mistakes.”

Paperwork submitted by John K. Bush, President Trump’s nominee for the Court of Appeals for the Sixth Circuit, reveals that Bush has spent a decade writing inflammatory and, often, offensive blog posts for the website Elephants in the Bluegrass.

Writing under a pseudonym, G. Morris, Bush authored more than 400 entries for the ultraconservative blog run by his wife Bridget Bush. While Bush pontificates on a broad swath of issues, one common theme runs throughout his writings: Bush displays a remarkable contempt for any issue he deems liberal or progressive, often launching into personal attacks on individuals he disagrees with. Bush’s writings should disqualify him for a lifetime seat on the federal bench for two reasons. First, Bush’s writings raise serious concerns about whether, as a judge, he will be able to approach the issues presented to him with an open mind, applying the law to the facts of the case without regard to his personal ideology. Second, Bush’s distasteful rhetoric demonstrates that he lacks the judicial temperament necessary to serve as a federal judge.

Bush’s nomination to the Sixth Circuit appears to have come at the behest of Senate Majority Leader Mitch McConnell. Bush has been acquainted with Senator McConnell since at least 2002 when Bush authored an amicus brief on McConnell’s behalf in a case involving Kentucky’s campaign finance laws. In his paperwork to the Senate Judiciary Committee, Bush explains that in November 2016, presumably after the presidential election, he met with Senator McConnell in Louisville where Bush “expressed [his] interest in serving as a federal judge.” Bush says that he has “been in contact with Leader McConnell and representatives from his office since that time.”

Reproduced below is a sampling of Bush’s troubling blog posts:

• In a post entitled The Legacy From Dr. King’s Dream That Liberals Ignore, Bush conflates the goals of the civil rights movement with those of the pro-life movement, concluding with the following statement: “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.”
• While live blogging from the 2016 Republican National Convention in July, Bush wrote Baring My Pre-Convention Thoughts, reflecting on the 2008 presidential election: “The Democrats were making history with the first serious African American candidate. McCain wasn’t the first anything. Only the most diehard of protestors thought it worth their time to protest him. This year is different. The Democrats are trying to win with the same game plan as in 2008, only substitute woman for Black.”
• In the same post Bush dismisses protestors at the Convention: “Speaking of unguarded moments, there were more than a hundred bare naked ladies protesting something earlier today. You know Trump is onto something huge when he causes people to shed their underwear. Not even Ron Paul could pull that off.”
• In October 2008, Bush wrote a post entitled Take That! that displayed only a photograph of a sign that said the following: ‘On 10-3 Obama supporters vandalized-trespassed 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!!!’
• In Barack Obama and Monica Lewinsky Change Democrats’ Minds, Bush had this to say about independent prosecutors and campaign finance: “Public financing of campaigns is as constitutionally dubious as the independent counsel statute was. Whereas the independent counsel violated the Constitution by undermining Executive power under Article II, public financing similarly runs afoul of constitutional guarantees by forcing taxpayers to subsidize candidates’ political speech in contravention of those taxpayers’ First Amendment rights.’’
• Bush also discussed campaign finance in a February 2008 piece entitled The Right To Put Your Money Where Your Mouth Is:  The “contention that too much is spent on political campaigns simply doesn’t square with the facts put in proper perspective. . . . The amount of money spent on such commercial speech dwarfs the relatively paltry amounts spent on political speech by candidates running for office. . . . So why shouldn’t more money, not less, be spent on political speech, given how much is spent by advertising and commercial speech? . . . Wealth is scattered so broadly in this country, and held by so many different people of diverse political viewpoints, that there is no danger of one mainstream political ideology unfairly having an upper hand in the raising of funds for political campaigns. And a moneyed candidate devoid of many good ideas cannot ‘buy’ an election: just ask Democratic Party Chairman Howard Dean, who flopped as a presidential candidate despite having raised tens of millions of dollars in campaign contributions.”
• In Don’t Let The Door “HIT” American Taxpayers on Obama’s Way Out, Bush discussed the Affordable Care Act: “The evidence is in that Obamacare, with all its ‘affordable’ regulations and taxes, isn’t a good value at all. It needs to be repealed and replaced in the new Congress under the leadership of the new President.”
• In a 2011 post, Bush criticized the State Department for modifying passport applications forms to account for the possibility of same-sex parents in A Parent 2’s Outrage: “Henceforth, the application will ask for ‘Mother or Parent 1’ and ‘Father or Parent 2.’ I suppose that’s better than ‘Thing One’ or ‘Thing Two’, but Hillary’s hybrid hardly eliminates my confusion. . . . . It’s just like the government to decide it needs to decide something like which parent is number one or number two. When that happens, both parents are subservient to the nanny state—more precisely, a nanny Secretary of State.”
• In Thanks, Mama Pelosi, For That 700 Point Stock Market Plunge!, Bush had this to say about House Speaker Nancy Pelosi: “We can thank House Speaker Nancy Pelosi’s partisan rhetoric for the Wall Street legislation going down in flames today in the House. No doubt she was suffering from severe lack of sleep, but there really was no excuse for her standing up before the vote and trying to place the entire blame on Republicans—and specifically President Bush—for the financial market crisis. . . . So it’s back to the drawing boards for the Administration and Congress to come up with Plan B. Here’s one suggestion to get things started: gag the House Speaker.”
• In Enviro-Do-Gooders Can’t Hold a Candle to NCAA Basketball, Bush had this to say about WWF’s 2008 campaign encouraging businesses and households to reduce energy consumption by turning back to candle power: “Plllease! This is the most ridiculous ‘energy conservation’ measure since President Jimmy Carter told us not to use any Christmas lights in the 1970s. Sorry, but I will be watching the NCAA basketball tournament at 8 p.m. ‘Saving’ the world from ‘climate change’ will just have to wait until we go to bed victorious after the U of L-North Carolina game.”

On May 10, President Trump nominated John K. Bush, a corporate lawyer in Louisville, Kentucky, to fill a seat on the Court of Appeals for the Sixth Circuit. Like other recent nominees, he fulfills the President’s pledge to outsource his constitutional role in nominating judges to the Federalist Society, the ultraconservative advocacy group that has taken over the judicial nominations process. Bush has deep ties to the organization, and in fact currently serves as the President of the Federalist Society’s Louisville Lawyers Chapter.

Bush’s nomination also seems designed to fulfill another pledge of the President’s—to weaken Constitutional protections for members of the press, whom the President has called “the enemy of the people.” Bush, like Trump, believes New York Times v. Sullivan, the seminal case that articulated broad protections for members of the press covering public officials and actions, was wrongly decided.

The President has not been shy about his belief that the First Amendment needs to be curtailed. In February 2016 then-candidate Trump remarked that if he became President, he would “open up our libel laws” so that “when The New York Times writes a hit piece which is a total disgrace . . . we can sue them and win money instead of having no chance of winning because they’re totally protected.” He promised that, if elected, “we’re going to have people sue [newspapers] like you’ve never got sued before.”

Of course, as others pointed out at the time, the Constitution does limit the President’s ability to successfully sue journalists he does not like. In New York Times Co. v. Sullivan, 376 U.S. 254 (1964), the Supreme Court held that members of the press were protected from libel actions brought by public officials unless the publisher knew or recklessly disregarded whether the statement being published was false. Justice Brennan, writing for a unanimous Court, explained that this heightened protection was necessary because of this country’s “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” Such debate, Justice Brennan wrote, “may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials.” Sullivan has been celebrated as “the clearest and most forceful defense of press freedom in American history.”

Perhaps recognizing he can’t unilaterally change the Constitution, the President has done the next best thing—nominated to the bench an individual who appears to agree with him that what this country needs is a press with less protection when it seeks to hold public officials accountable. Notably, Bush has said that New York Times v. Sullivan “was wrongly decided.” In fact, at a 2009 Federal Society panel entitled The Constitution and the Importance of Interpretation: Original Meaning, after praising originalism, he discussed originalism’s application to the First Amendment. Bush emphasized “from an originalist perspective that New York Times v. Sullivan probably wasn’t correctly decided.”

Bush’s comments about Sullivan, while disturbing at any time, must take on special significance at a time when President Trump is under a cloud of suspicion for his campaign’s ties to Russia and the fact that he has relentlessly attacked the press for investigating and reporting on the matter. Indeed, whether it is the investigation regarding Russia or any other investigative reporting by the press, the President has made clear his contempt for critical First Amendment protections. And it appears that President Trump may have found an ally in Bush on his crusade to change decades’ worth of precedent and limit the press’ ability to report freely on matters of grave public concern.

Bush’s statements raise serious doubts about whether he would uphold or correctly apply seminal Supreme Court precedent and whether he should be confirmed to a lifetime seat on one of the most influential courts in the Nation.

This morning the Supreme Court will hear a case about playground surfaces that could pave the way for public funding of religious schools. Trinity Lutheran Church of Columbia, Inc. v. Comer asks whether Missouri’s Department of Natural Resources must allow religious entities to participate in a state program providing grants for resurfacing playgrounds with tire scraps. The State denied Trinity Lutheran’s grant application, citing a provision in the Missouri Constitution providing that public funds cannot be used “in aid of any church, section or denomination of religion.”

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Yesterday, in a landmark opinion, the United States Court of Appeals for the Seventh Circuit ruled that employers can be sued for discriminating against employees because of their sexual orientation. But this laudable ruling, which most likely sets the stage for a future Supreme Court showdown, comes as the Supreme Court seems poised to add a new and ultraconservative justice to its ranks: Neil Gorsuch.

Writing for the court in Hively v. Ivy Tech Community College of Indiana, Chief Judge Diane Wood concluded that “discrimination on the basis of sexual orientation is a form of sex discrimination” and, therefore, unlawful under Title VII of the Civil Rights Act of 1964 (the civil rights statute that protects against discrimination in the workplace based on “race, color, religion, sex, or national origin”). Chief Judge Wood’s opinion was joined by seven members of the eleven-judge panel. Of the eight judges in the majority, Republican presidents appointed five. Judge Diane Sykes, who was on President Trump’s short list for potential nominees to the Supreme Court, dissented. Read more