Bush, Schiff “Have Shown Us Who They Are”

Washington, D.C., June 14, 2017 – Following today’s Senate Judiciary Committee confirmation hearing for federal judicial nominees John Bush and Damien Schiff, AFJ President Nan Aron issued the following statement:

“We applaud senators on both sides of the aisle for pressing John Bush and Damien Schiff regarding their long histories of expressing fringe and biased views. Despite their half-apologies for any offense caused by their more extreme statements and insults, and the unconvincing promises to put aside personal views the moment they put on a robe, the fact remains that these nominees have shown us who they are over the course of their careers. As Senator Kennedy said today with respect to John Bush’s blog posts, ‘I am not impressed.’ These individuals harbor deep antipathy to LGBTQ rights, women’s rights, workers, people with differing political views, and the role of our government in protecting our health, safety and environment. Moreover, the fact that hearings for all three were crowded into a single day means that there was nowhere near enough time for senators to fully question the nominees on these issues. For all these reasons, we urge senators to reject the nominations of John Bush and Damien Schiff.”

AFJ identified the following key takeaways from today’s hearing:

• It was abundantly clear that there was not adequate time to question all three controversial nominees. It is exceedingly rare for the Senate Judiciary Committee to consider more than one circuit court nominee per nomination hearing.
• Senator Whitehouse rightly highlighted the White House’s and some Republicans’ refusal to scrutinize the records of Bush and Schiff, saying, for example, “if President Obama had sent a nominee that had called Justice Kennedy a judicial prostitute, the other side of this dais would have its hair on fire about that.” In fact, Senator Lee said that comments made by Goodwin Liu, an Obama nominee to the Ninth Circuit, about Samuel Alito “were offensive . . . because they were a misleading and unwarranted personal attack on a dedicated public servant.” Liu had said that Justice Alito had a vision for America that ignored discrimination and promoted an expansive role for the police state. Liu also said that Justice Alito “approaches law in a formalistic, mechanical way abstracted from human experience.”

John K. Bush

• Even Republicans expressed concern about Bush’s blog posts. Senator Kennedy didn’t ask Bush any questions. Instead, while shaking his head, he criticized Bush for his extreme and intemperate writings: “Mr. Bush, I’ve read your blogs. I’m not impressed.” Senator Tillis also made known that he “ha[s] concerns with [Bush’s] blog posts.”
• Bush failed to make clear he would be an impartial judge. Senator Tillis questioned whether, given his blog posts, Bush could be impartial on the bench. Tillis asked Bush, “[d]o you think that impartiality is an aspiration or an absolute expectation?” When Bush responded, “[i]t is an aspiration. I will do my best to be impartial,” Tillis fired back, “I actually have a concern with someone who thinks impartiality is an aspiration. I think it’s an expectation.”
• Under questioning from Senators Feinstein and Durbin, Bush refused to disavow his comparison of abortion to slavery.
• When Senator Franken asked Bush about several posts he wrote about President Obama’s Kenyan heritage, Bush could not explain why he cited to articles from radical, alt-right websites, including WorldNetDaily, that peddle white nationalism and debunked conspiracy theories.
• In response to questioning by Senator Klobuchar, Bush refused to take back his previous statement that New York Times v. Sullivan “probably wasn’t correctly decided.” Also, Bush never acknowledged that in a brief he wrote for Senator Mitch McConnell, he misstated the standard of review for restrictions on campaign contributions. His misstatement would have made it easier for dark money to flood our democracy.
• Under questioning from both Democratic and Republican senators, Bush apologized for repeating an LGBT-slur in a speech. Bush did not explain, however, why he did not condemn the slur at the time he used the quote, as opposed to years later only at a confirmation hearing. Bush also did not address his other comments demonstrating his hostility toward LGBT rights, including his criticism of the Kentucky Supreme Court for “immuniz[ing] consensual sodomy from criminal prosecution” and his mockery of a State Department effort to modify passport applications to account for same-sex parents.

Damien Schiff

• Schiff misled the Committee, claiming that he had not intended to call Justice Kennedy a “judicial prostitute,” but instead, had been lodging a criticism against the media. Schiff’s direct quote is: “It would seem that Justice Kennedy is . . . 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, and the blandishments of the fawning media and legal academy.” To be fair, Schiff did criticize the media in his post, but for “perpetuating the myth of the ‘Great Sphynx of Sacramento,’” and not “excoriat[ing] [Justice Kennedy] for trying to be a statesman and a legislator in the wrong branch.”
• Schiff refused to answer Senator Franken’s questions about how a school district’s efforts to curb bullying aimed at LGBT students was tantamount to “teaching gayness” in schools. Moreover, Schiff refused to discuss his personal beliefs about LGBT rights. This is no surprise given Schiff’s prior statements that he “strongly disagree[d] with the [sic] Lawrence” (the case that struck down Texas’s discriminatory sodomy law), that the legalization of gay marriage in California was incorrect, and that the “empirical foundations” of anti-LGBT animus are not without merit.
• Schiff repeated the empty refrain that, as a judge, he would neutrally apply the law to the facts of each case that was before him. This answer fails to account for Schiff’s prior statements that judges should not apply the law, but should affect a “reinvigorated constitutional jurisprudence, emanating from the judiciary,” which “could well be the catalyst to real reform, as opposed to that reform coming from other branches.”