Federal Courts Won’t Save Us if We Don’t Save the Federal Courts

We can’t depend on the Trump administration or on Congress to protect civil rights. So we need to save the courts.

After the Ninth Circuit ruled against the president’s Muslim ban again this week, it didn’t take long for President Trump to lash out on Twitter.

It wasn’t surprising. Trump’s attacks on federal courts and judges have become breathtakingly commonplace. During the campaign, Trump questioned Judge Gonzalo Curiel’s ability to judge fairly because “he’s a Mexican” and repeatedly called him a “hater.” In February, he called Judge James Robart a “so-called” judge for ruling against his Muslim ban. Days later, when the Ninth Circuit unanimously refused to reinstate the ban, he tweeted “SEE YOU IN COURT,” and called the decision “disgraceful.” In April, when Judge William Orrick halted his effort to block funding to sanctuary cities, Trump, in a series of tweets, called the ruling “ridiculous.”

As The Leadership Conference has long recognized, the composition of the federal judiciary is a civil and human rights issue of profound importance because federal judges are charged with dispensing justice — and that has a direct impact on civil rights protections for all. Independent and fair courts are also an important check on other branches of government, as federal judges are demonstrating in particular with respect to Trump’s Muslim ban.

That’s why we fought so hard to block Trump’s Supreme Court nominee, Neil Gorsuch, and why we’re fighting to prevent other extreme Trump rubberstamps from being confirmed to the federal bench. John K. Bush, nominated to serve on the U.S. Court of Appeals for the Sixth Circuit, and Damien M. Schiff, nominated to serve on the U.S. Court of Federal Claims, are both appearing before the Senate Judiciary Committee tomorrow — and neither of them would be the independent and impartial federal judges America needs.

Bush and Schiff have a history of blogging on topics that make them unfit to serve on the federal bench. Bush has written more than 400 posts on the partisan blog Elephants in the Bluegrass under the pseudonym G. Morris. Schiff writes both on the Pacific Legal Foundation’s Liberty Blog and Omnia Omnibus, his personal blog. It’s not surprising that Trump, renowned for his statements on what was founded as a microblogging site (Twitter), would choose to nominate men with an affinity for provocative and offensive blogging. But the last thing the judiciary needs is someone with Trump’s temperament or bias.

The Alliance for Justice (AFJ) has explored Bush’s and Schiff’s records extensively. The Leadership Conference has also written to the Senate Judiciary Committee with our concerns about both nominees. Here’s a sampling from their personal writings:

• In a 2008 blog post titled “The Legacy From Dr. King’s Dream That Liberals Ignore,” Bush wrote: “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.” Bush’s attempt to appropriate the civil rights legacy of Martin Luther King, Jr. to justify his own extreme anti-abortion views is flawed and offensive. It also raises serious concerns that he would apply decades of binding precedent upholding the right of privacy.
• Bush has written several blog posts about money in politics. In one posting, he asserted that public financing of campaigns is unconstitutional. In another, he argued for increased spending in political campaigns, writing: “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 advertisers on commercial speech?”
• Schiff has demonstrated a disturbing anti-LGBT bias in his writings. In one post, he stated that “I strongly disagree with the Lawrence [sic] because I can find no historical or precedential basis, pre-1868, for its limitation on the legislative proscription of sodomy.” In another posting, he wrote: “The impetus for the gay rights movement is that we cannot deny to consenting adults the full cultural and legal recognition of the propriety of their sexual fulfillment.” In that same piece, he said that a state court ruling that permitted same-sex couple adoption “underscores my fear that soon the advocacy of traditional sexual morality will be deemed to fall outside the sphere of legitimate secular political debate.”
• Schiff views courts as a vehicle to advance an extreme agenda rather than to dispassionately apply the law. In a 2008 blog posting, Schiff discussed comments he had made at a conference on the separation of powers. He wrote: “I urged that a reinvigorated constitutional jurisprudence, emanating from the judiciary, could well be the catalyst to real reform” and that “the Supreme Court, with just five votes, can overturn precedents upon which many of the unconstitutional excrescences of the New Deal and Great Society eras depend. A limited ‘substantial effects’ test, a recharged nondelegation doctrine, and a return to economic due process would yield significant benefits, and quickly.” This radical vision of the law would take us back to the Lochner era when the Supreme Court struck down minimum wage and labor laws in order to protect corporate interests above all others.

There’s one disturbing example after another in AFJ’s reports and in our letters on these and many other issues, like environmental rights, property rights, judicial activism, police misconduct, and voter fraud.

It’s also important to remember that Trump now has an unusually high number of judicial vacancies to fill — more than 130. During Obama’s presidency, Senate Republicans did all they could to slow-walk his judicial nominees despite a significant rise in vacancies. Today, thanks to that obstruction, there are 51 judicial emergencies across the country — many which would have been filled already had Republicans not blocked Obama’s nominees. Trump could immediately help by re-nominating the 25 nominees who were left pending on the Senate floor last year, all of whom had the support of their home-state senators. Trump has only re-nominated two.

Americans deserve highly qualified federal judges (who should go through the American Bar Association review process before being nominated). We’ll continue to speak out against ideologically extreme nominees and urge senators to do the same. The Trump administration has shown it is eager to rollback civil rights. The Republican-led Congress, with recent votes to strip health care from millions and gut consumer protections, is doing the same. Our third branch of government, the judiciary, will be critical to protecting civil rights — but only if we save it.