John Bush and Damien Schiff are Unfit to Serve as Impartial Federal Judges

Our tweeting president wants these two bloggers to serve on the federal bench. Their writings show they’re both too extreme.

By Mike Zubrensky

On Thursday, the Senate Judiciary Committee is poised to debate and vote on two of the most demonstrably provocative federal judicial nominees in a generation: John Bush and Damien Schiff. And our Constitution’s system of checks and balances is at stake.

The question for the 20 senators who serve on the committee is whether the clearly expressed views of judicial nominees matter at all in their consideration to be federal judges. Over time, some have suggested that confirmation hearings were merely theater. Some have argued for ending the process altogether because nothing is learned at them. The confirmation process for Bush and Schiff should put those misguided opinions to rest for a long time.

Within weeks of their nominations on May 8, it was revealed that Bush and Schiff had posted several anonymous blogs that raise serious questions about their fitness to serve on the federal bench.

The most outrageous was a post from Schiff, a nominee to the U.S. Court of Federal Claims, where he called Supreme Court Justice Anthony Kennedy a “judicial prostitute, ‘selling’ his vote as it were to four other Justices in exchange for the high that comes from aggrandizement of power and influence.” In another post entitled “Teaching ‘gayness’ in public schools,” he condemned a California school district that had created an anti-LGBT-bullying curriculum, writing: “Until 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.”

John Bush, a nominee to the U.S. Court of Appeals for the Sixth Circuit, wrote under a pseudonym, “G. Morris,” in which he asserted: “The two greatest tragedies in our country — slavery and abortion — relied on similar reasoning and activist justices at the U.S. Supreme Court.” In a blog post he wrote from last year’s Republican National Convention, he said that “debate raged over whether Hillary would look better wearing pantsuits in orange or black stripes.” In another post attacking President Obama, Bush linked to an article from World Net Daily, an online publication that the Southern Poverty Law Center describes as “devoted to manipulative fear-mongering and outright fabrications designed to further the paranoid, gay-hating, conspiratorial and apocalyptic visions” of its founder.

The written records of these two judicial nominees are simply stunning. It is telling that NPR’s Nina Totenberg noted that their hearing might as well have been called ‘The Case of the Bloviating Bloggers.” Bush and Schiff cannot now claim that their blogs were not reflective of their own personal views. They cannot hide behind a client or dodge in any other way from the positions they espoused on these blogs. It is no wonder neither Bush nor Schiff lacked the courage to attach their actual names to their personal opinions when they posted them online.

These personal and extreme comments, and dozens of others, became publicly known only because the nominees were required to reveal their published writings to the Senate Judiciary Committee as part of the nomination process.

However, what was unknown until recently — after these nominees answered written questions from Democratic senators — is that the Trump White House likely did not know about Schiff’s surreptitious writings until after he was nominated. Majority Leader Mitch McConnell also likely did not know about Bush’s troubling writings at the time he recommended him to the White House.

How do we know this? In responding to written questions by Sens. Whitehouse and Franken, Schiff revealed that he did not remember writing his “judicial prostitute” post until the press wrote about it on May 26–18 days after he was nominated. The Trump White House should have known about Schiff’s blog posts prior to nomination. That is how the vetting process is supposed to work.

As for Bush, in response to a written question from Franken, he stated: “I disclosed my blog posts to attorneys from the White House Counsel’s Office and Department of Justice during the judicial selection process. I do not believe it would be inappropriate for me to comment upon my communication with the Majority Leader or Senator Paul, who are not officially involved with the nomination process.” Bush’s refusal to acknowledge when he revealed his blog posts to his home-state senators strongly suggests he is hiding something. If McConnell had known about Bush’s offensive and intemperate writings, it seems unlikely he would have recommended him for a judgeship.

Senators should demand to know whether the Bush and Schiff nominations were made without proper vetting. In its haste to beat the timetable of President George W. Bush’s first slate of judicial nominees, it seems like the Trump White House did not adequately vet the Bush and Schiff nominations. This troubling pattern for the Trump presidency is not new and has resulted in the withdrawal of Andrew Puzder, the first Labor Secretary nominee, and the withdrawal of Mark Green, the second Army Secretary nominee, not to mention Mike Flynn. But those positions are nothing compared to longer appointments to an independent branch of government. The Sixth Circuit is a lifetime appointment and the Court of Federal Claims is a 15-year term. The stakes are clearly much higher here.

Senators on both sides of the aisle have expressed discomfort with our tweeting president. Tomorrow, we will learn if 20 senators on both sides of the aisle are comfortable with anonymous bloggers who have clearly demonstrated that they are unfit to serve as impartial federal judges. The Leadership Conference urges senators to reject these two nominees.

Mike Zubrensky is chief counsel and legal director of The Leadership Conference on Civil and Human Rights. During the Obama administration, he was Deputy Assistant Attorney General and worked on judicial nominations for the Department of Justice.