Look Who’s Talking?
“His comments about [that Supreme Court Justice] were offensive . . . because they were a misleading and unwarranted personal attack on a dedicated public servant.”
Your first guess might be a Democratic senator discussing Damien Schiff—nominated for a position on the U.S. Court of Federal Claims—who called 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, and the blandishments of the fawning media and legal academy” (emphasis added).
You would be wrong.
That comment was made by Republican Senator Mike Lee, who sits on the Senate Judiciary Committee. Lee was criticizing Goodwin Liu during Liu’s confirmation process for a seat on the Court of Appeals for the Ninth Circuit, for comments that Liu made about Justice Samuel Alito. Liu previously 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.”
Lee was not the only Republican senator to vigorously attack Liu for his comments about Justice Alito. Texas Senator John Cornyn remarked that Liu’s comments “raise some serious questions about whether [Liu has] the sort of temperament and the ability to set aside your strongly held academic and scholarly views.” Now-Chairman Chuck Grassley said that Liu’s “language was unduly harsh, provocative, unnecessary, and was a case of poor judgment,” and that Liu “promotes extreme views and intemperate language.”
Let’s review. Senators Lee, Cornyn, and Grassley said that Liu should not be confirmed because he questioned whether Justice Alito would turn a blind eye to discrimination and expressed concern that Justice Alito would apply the law in a “mechanical way abstracted from human experience.” Surely, at Schiff’s confirmation hearing on Wednesday, Senators Lee, Cornyn, and Grassley will raise the same concerns about Schiff’s suitability for the bench based on his remark that Justice Kennedy is “a judicial prostitute,” and his assertion that Justice Kennedy is intellectually dishonest for not applying the law neutrally, but in a way that will bring him the most attention from the academy and the media.
If they don’t, we would be hard pressed to attribute their preferential treatment of Schiff to anything other than his status as a card-carrying member of The Federalist Society who’s been nominated to the bench by a Republican President.
While we are on the subject of equal treatment, let’s look at another quote. Who said:
“I’ve said frequently over the years that I never disqualify judicial nominees just because they’ve been politically active. . . . For example, in recent years the nominee has written a number of blog posts about local and national politics. I’ve read his posts. I’ll say that some are of a stridently political nature. . . . Others? Well, they’re simply too crude and sexist for me to quote from here, but at the conclusion of this statement I’ll submit them to be included in the public record. . . . So, I’ll just say that the sheer coarseness of those posts led me and other members of our Judiciary Committee to question whether [the nominee] has the temperament suited to lifetime judicial service.”
Once again, you might think that this criticism was lodged by a Democratic senator against John K. Bush—President Trump’s nominee for the Sixth Circuit—who has spent the better part of the last decade writing crude blog posts under a pseudonym. In those posts, Bush likened a woman’s right to decide whether to have an abortion to slavery, peddled discredited conspiracy theories about President Barack Obama, called for Nancy Pelosi to be “gag[ged]” when she made comments he disagreed with, and disparaged a group of female protestors who had removed their clothes by saying, “[y]ou know Trump is onto something huge when he causes people to shed their underwear.” Bush also made clear his deep allegiance President Trump when, live blogging from the Republican National Convention, he said that “a movement has started,” “we will make America great again,” and it is “[t]ime to roll with Trump.” In addition, Bush recited and apparently condoned a quote by another author that employed an anti-gay slur: “I come here every year, and let me tell you one thing I’ve learned—this is no town to be giving people the impression you’re some kind of faggot.”
Once again, you would be wrong. That comment was made by Chairman Grassley about President Obama’s nominee to a district court in Missouri, Stephen Bough. Chairman Grassley took particular offense at Bough’s comments that “religious right folks” should “come on over to the party that cares about the poor” and that President George W. Bush “rewarded his most loyal supporters—the religious right wing—with appointments of justices that will erode civil liberties.” Chairman Grassley made clear that Bough’s “political dialogue” had been “so coarse—so strident—that we, as Senators, lack confidence that he can render judgment without regard to political considerations[.]”
Chairman Grassley was up in arms over Bough’s blogging and we expect that he will take a similar stance on Bush’s crude and coarse writings. For that matter, Chairman Grassley might consider questioning Schiff on some of his more offensive blog posts, too. If he doesn’t, you might not be surprised to know that Bush is President of the Louisville Lawyer’s Chapter of The Federalist Society and has extensive ties to the Republican Party.