New Report Finds Schiff “Completely Unfit” for Federal Bench

Press Release

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Carolyn Bobb

Washington, D.C., June 8, 2017 – Alliance for Justice today released a report on the record of Damien Schiff, a California attorney who has been nominated for a seat on the Court of Federal Claims. Based on AFJ’s research on Schiff’s record, AFJ President Nan Aron released the following statement:

“Damien Schiff, who once insulted Justice Anthony Kennedy by referring to him as a ‘judicial prostitute,’ is completely unfit for the federal bench – and unless President Donald Trump also thinks of Justice Kennedy as a ‘prostitute,’ he should withdraw Schiff’s nomination. The remark about Kennedy is disqualifying on its own.  But apart from that, Schiff has a long history of embracing fringe philosophies and making incendiary statements that highlight his lack of suitability for the bench. He believes government is bound not by the Constitution, but by ‘natural law.’ He believes the role of judges is not to decide cases without bias, but to be a ‘catalyst’ for upending decades of  regulatory reforms aimed at protecting civil rights, the environment, and worker safety.  His writings evince a bias against the rights of women and LGBTQ people; the list goes on and on.” 

AFJ’s report on Schiff covers his career as well as his extensive writings, in which he makes clear his extreme views and lack of judicial temperament. Among other things, the report notes that Schiff:

  • Made a disparaging statement about Justice Anthony Kennedy, calling him “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.” He went on to write: “[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.”
  • Has written that the role of judges, rather than dispassionately applying facts and the law in deciding cases, is to create 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.”  He has written that “the President is hampered by the modern administrative state” and “Congress, as a collective body of 535 persons, cannot act effectively.”  In addition, he writes, “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.”
  • Lacks the temperament to be a fair and unbiased judge, as shown by his repeated and harsh online attacks against environmentalists, LGBTQ advocates, union organizers, and legal scholars, among others. 
  • Harbors a deep hostility toward environmental protection.  He believes the EPA treats citizens like “slaves.”  In addition, he frequently expresses animosity toward environmentalists themselves, accusing them of pushing “an agenda that has more to do with stifling productive human activity than fostering ecological balance.”
  • Believes that the Endangered Species Act has “been perverted” into “a threat to individual liberty and property rights”  and is “one of the nation’s most potent threats to our constitutionally protected property rights.”
  • Believes that OSHA and application of Title IX to high school sports is unconstitutional.
  • Believes states should be able to criminalize “consensual sodomy,” opposes marriage equality, and has criticized efforts to prevent bullying of LGBTQ students (what he refers to as “teaching gayness in schools”).
  • Believes that the federal government should sell its national parks to private owners, and supported the notion that Yosemite could be sold to the Walt Disney Company.  He also believes persons who don’t have students in public schools should not have to pay taxes to support educating our nation’s children.
  • Favors a return to the so-called Lochner era and advocated other extreme legal philosophies that would permit federal courts to regularly second-guess health  and safety and land use measures enacted by state and local governments.
  • Has expressed skepticism towards the First Amendment and disagreed with the “progressivist argument” that free speech is of “great value.”  At the same time, he wrote an amicus brief in the Citizens United  case, in which he argued that “corporate speech adds value to our democratic society,” and believes corporate spending in campaigns and elections “should be encouraged.”   

AFJ’s report also notes that although terms on the Court of Federal Claims are limited, it is possible for judges on the court to serve multiple terms and to be promoted to higher federal courts. AFJ believes that Schiff’s nomination should be viewed not just in light of a potential 15-year term on the CFC, but as a likely entree to a lifetime career on the federal bench.  

Read the full report online here.