President Trump’s New Nominee Called Justice Kennedy a “Judicial Prostitute”

President Trump has nominated Damien M. Schiff, Senior Attorney at the Pacific Legal Foundation and member of The Federalist Society, for a seat on the U.S. Court of Federal Claims.  As noted in his Senate Judiciary Questionnaire, in a series of blog posts on both the Pacific Legal Foundation’s Liberty Blog and his own personal blog entitled Omnia Omnibus, as well as in other writings, Schiff repeatedly demonstrates his extreme views and his unfitness to serve as a judge.  

First, Schiff’s writings include personal attacks on the integrity of a sitting Supreme Court justice, advocates, and progressives.  This alone demonstrates he lacks the judicial temperament to serve as a judge.

Second, Schiff’s writings demonstrate a blatant disregard for the importance of critical rights and protections relied on by millions of Americans and an extreme devotion to political ideology.

Finally, Schiff, who has devoted his career to weakening environmental laws and other legal protections, has made clear that he believes the role of a judge is not to neutrally apply facts to the law.  Rather, he has called for a “reinvigorated constitutional jurisprudence, emanating from the judiciary” that would “overturn precedents upon which many of the unconstitutional excrescences of the New Deal and Great Society eras depend.” In achieving that goal, Schiff has called on President Trump to rescind environmental and regulatory reforms and has stated that OSHA is unconstitutional.

With his lack of judicial temperament, commitment to political causes, and extreme views on the role of the judiciary, no litigant can trust that Schiff would approach issues with an unbiased open mind.

Reproduced below is a just a sampling of Schiff’s disturbing writings:

Judicial Temperament    

• In a blog post entitled Kennedy as the most powerful justice?, Schiff calls Justice Kennedy, “a judicial prostitute” for “‘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.” Schiff continued, “[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.”
• Appearing on the Lou Dobbs Tonight show, Schiff commented on a case he was litigating against the Environmental Protection Agency: “This is a problem with the agency across the board treating American citizens as if there [sic] were not American citizens, as if they were just slaves, and it’s atrocious.”
• In an op-ed, Putting good sense on the endangered list, Schiff ridiculed environmentalists for “push[ing] an agenda that has more to do with stifling productive human activity than fostering ecological balance.”  And, in an article entitled The Endangered Species Act Turns 40 – Hold the Applause, he attacked “a cottage industry of litigation that does more to enrich environmental activist groups than benefit the government.” In April 2017, he went so far as to claim, in an article entitled We can pursue Earth Day’s goals without endangering freedom that Earth Day was “a threat to individual liberty and property rights.”
• In a blog post entitled Ackerman and the Constitutional Canon, Schiff noted generally the “decadence and intellectual atrophy of a left-legal establishment that promises to undermine American constitutionalism.”
• In a blog post responding to a bumper sticker that read: “If you love your pet, why do you eat animals?” Schiff disparages vegetarians stating, “What can be better for a cow (a nonrational creature) than to serve as fuel for rational creatures?”

LGBTQ Rights

• While blogging from a conference on Federalism and the Separation of Powers, Schiff stated that he opposes equal rights for LGBTQ Americans.  He wrote, “I strongly disagree with the [sic] Lawrence.  He added, “[i]t is unfortunate that substantive due process has been so sullied by the Left that one cannot put forth a coherent and plausible originalist yet also substantive interpretation of the due process clause without being associated with the likes of Justice Douglas et al.”
• In a 2008 publication on The Federalist Society’s website, Schiff wrote an article entitled The Modern California Supreme Court: Progressivism and Practical Constraints criticizing gay marriage in California: “Far more significant in the Marriage Cases was the court’s adoption of strict scrutiny in cases where the government classifies people on the basis of sexual orientation.  This portion of the opinion will have far-ranging effects in the coming years.” He added that “[g]iven that California remains the epicenter of major battles between traditionalists, located for the most part in the state’s rural counties, and urban social liberals, a statewide rule requiring school districts, public health clinics, and all other government institutions to treat both groups with precise equality may result in serious conflicts in the decades ahead.”
• Also in 2008, Schiff wrote a post entitled Traditional Sexual Mores and the Permissible in Secular Discourse comparing racism and anti-LGBT animus, Schiff noted that “racism became a pariah position because (1) its enforcement, both legally and culturally, effected loathesome [sic] evils (and evils recognized as such by all sides), and (2) its supposed empirical foundations were without merit.  Similarly, when it comes to gay issues, many folks on the gay rights side would contend that (1) and (2) are present, which justifies the vilification of anti-gay-rights folks. I would disagree.”
• In a blog post titled Teaching “gayness” in public schools, Schiff criticized schools for teaching “not only that bullying of homosexuals qua homosexuals is wrong, but also that the homosexual lifestyle is a good, and that homosexual families are the moral equivalent of traditional heterosexual families.”  For this reason, he “objected to an anti-racism curriculum being taught in 1950s Arkansas” and “[u]ntil 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.”

Women’s Reproductive Health

• In a post entitled Abortion and “Secular Government” Schiff writes, “I am not saying that people in favor of legalized abortion are morally decrepit (although I would consider their view on this matter to be gravely in error).”
• In a post entitled Abortion and Equality, Schiff criticizes an article by Professor Reva Siegal by noting that her argument “presupposes that the unborn person is not a person entitled to any of the protections of the Constitution, including the Due Process and Equal Protection Clauses of the 14th Amendment.” He continues, “[c]learly, forbidding women to abort their unborn children . . . at most . . . might be a deprivation of liberty within the meaning of the [Due Process Clause], but that position, although conceptually less disagreeable than the [Equal Protection Clause] argument, is nevertheless without originalist merit.”
• In a 2008 blog post, Schiff commented favorably on a speech by Archbishop Chaput of Denver criticizing Catholics who supported Obama.  He wrote that Chaput’s “remarks underscore that abortion is a trumping issue, and that a pro-choice vote cannot be justified by reliance upon a candidate’s family or poverty or war policies.”

Affirmative Action

• In a 2007 law review article entitled Divisive Diversity at the University of Texas: An Opportunity for the Supreme Court to Overturn its Flawed Decision in Grutter, Schiff compared Grutter to Dred Scott, Plessy and Korematsu.  He concluded that “[t]he sad truth is that the United States has a sordid history when it comes to dealing with issues involving race. From Dred Scott v. Sandford, to Plessy v. Ferguson, to Korematsu v. United States, the Supreme Court has all too often been at the forefront of this ugly history. Yet, the Supreme Court has also righted each one of those wrongs. In the Slaughterhouse Cases, the Supreme Court recognized that the Fourteenth Amendment overturned Dred Scott by making all persons born in the United States citizens (and not chattels).  In Brown v. Board of Education, the Supreme Court overturned Plessy by holding that separate is inherently unequal.  And in Adarand Constructors v. Pena, the Supreme Court affirmed that strict scrutiny must be rigorously applied so mistakes like Korematsu do not happen again.  Grutter v. Bollinger should also be recognized as one of the Supreme Court’s mistakes.”