In 2017, President Trump nominated Stephen S. Schwartz
to serve as a judge on the United States Court of Federal Claims (CFC). At the
time, AFJ issued a report
detailing his record of fighting to advance ideologically extreme policies. Schwartz
was only 34 years old when he was nominated, yet, in his very brief career he had
already fought to make it harder for people to vote, defended restrictions on
women’s access to reproductive healthcare, and worked to erode equality for transgender
students. Fortunately, the Senate did not act on Schwartz’s nomination, and his
name was returned to the White House.
Trump renominated Schwartz in 2019 and additional
writings, including controversial ones Schwartz concealed from the Senate
Judiciary Committee when he was first nominated, became available. These new
materials provide even more evidence that Schwartz is a partisan warrior
committed to advancing a dangerous ideological agenda from the bench, and not
someone who will be a fair and unbiased jurist.
Among the new materials that demonstrate just how
radical Schwartz is:
- Schwartz wrote an article for the Yale Herald advocating for the privatization of Social Security and elimination of all health care and other social programs. Schwartz wrote:
[A]ll government spending on Social Security, welfare, medical insurance, and the like is harmful not only to society as a whole but also to the ostensible beneficiaries of such programs… [P]eople who come to depend on an outside agent (be it a patron, government, or parent) for their livelihoods are inevitably somewhat less than fully mature adults.
- In the same article, Schwartz wrote: “the
modern aim of guaranteeing [the elderly] a comfortable, modern standard of
living and full medical coverage is not… a worthwhile goal for the government
to undertake.”
- In another article
for the Yale Herald, Schwartz argued the entire Departments of
Transportation, Education and Agriculture were unconstitutional. He wrote:
One can find constitutional provision for departments of defense, justice, state, commerce, and the treasury without difficulty. But transportation? Education? Agriculture? Such departments, under the Tenth Amendment, oversee matters that often ought to receive government attention but are reserved for state authority.
As AFJ demonstrated in 2017, Schwartz should not be confirmed to any court, let alone the CFC. The CFC has been called the “keeper of the nation’s conscience” and “the People’s Court” and hears monetary claims against the United States government deriving from the Constitution, federal statutes, executive regulations, and civilian or military contracts. Moreover, judges on this court have been elevated to federal courts of appeals in the past.
Schwartz believes Social Security, Medicare, and Medicaid are untoward and thinks entire agencies, including those that protect the civil rights of students, help ensure access to quality education, provide nutrition assistance to needy children and families, support conservation and rural development, and help ensure a fast, safe, efficient, accessible and convenient transportation system are unconstitutional. An individual with such contempt for the federal government and the people it serves has no business adjudicating cases.
If Schwartz is confirmed and has an opportunity to implement his radical views as a judge, the consequences for millions of Americans could be devastating.
If Schwartz is confirmed and has an opportunity to implement his radical views as a judge, the consequences for millions of Americans could be devastating. As just one example, after failing to overturn the Affordable Care Act (ACA) through Congress, Trump has turned to our federal courts to deprive millions of Americans of health insurance coverage. Trump has explicitly stated that he would only nominate judges who will overturn the ACA, saying “my judicial appointments will do the right thing unlike Bush’s appointee John Roberts on ObamaCare.” The CFC has heard cases involving the ACA, including one currently being considered by the Supreme Court. It is not unlikely that a case involving the ACA would come before Schwartz – who certainly meets Trump’s litmus test – should he be confirmed.
Finally, AFJ previously raised concerns regarding Schwartz’s commitment to eroding reproductive freedom. Since he was first nominated, Schwartz filed a brief in June Medical Services v. Gee defending a Louisiana law which restricts a women’s access to an abortion. The law itself serves no medical purpose and is just another effort by state lawmakers to legislate abortion out of existence without directly overturning Roe. Moreover, the law is identical to a Texas law that was struck down by the Supreme Court in 2016 in Whole Woman’s Health v. Hellerstedt.
In his brief, Schwartz claims that “there is no likelihood of irreparable injury” if the law takes effect, despite findings that it would close at least two of the three remaining abortion clinics in Louisiana. Schwartz also published a blog about the case where he discussed another brief he filed that argues abortion providers who are plaintiffs in the June Medical case have a conflict of interest with women they represent because they have an interest in less regulation and more profit. This is a cynical attempt to get the court to end the decades-long practice of allowing doctors to represent the interests of their patients in reproductive healthcare cases. This practice is grounded in the well-documented findings that it is extremely difficult for women to come forward and represent themselves in such cases.
Since being nominated more than two years ago,
Schwartz has continued his aggressive advocacy for right-wing causes. These newly available documents only heighten
concerns about his ability to be an independent and fair-minded judge. Alliance
for Justice strongly opposes Schwartz’s confirmation and we urge the Senate to reject
his nomination.