Allison Jones Rushing

Allison Jones Rushing exemplifies the young, minimally qualified, and highly ideological type of judicial nominee that the Trump Administration has consistently sought. Like many other Trump nominees, she appears to have been chosen on the basis of her record of commitment to conservative causes and organizations rather than her legal career and experience. Prior to her confirmation to the Fourth Circuit, Rushing fought against the rights of LGBTQ people as a legal intern at the Alliance Defending Freedom, a group which “has supported the recriminalization of homosexuality in the U.S. and criminalization abroad; has defended state-sanctioned sterilization of trans people abroad; has linked homosexuality to pedophilia and claims that a ‘homosexual agenda’ will destroy Christianity and society.” She also worked as a corporate appellate lawyer, arguing in one case that employees who were denied overtime pay could then be deprived by their employers of the right to unite and join as a class action in arbitration under the National Labor Relations Act. As a judge, she tried to dismiss a case against Donald Trump for violating the Emoluments Clause and ruled that the Trump Administration’s domestic gag rule that forbids federally-funded clinics from discussing abortion with their patients can go into effect in Baltimore while an injunction is appealed. 

After being confirmed to the Fourth Circuit, Judge Rushing held in Mey v. DirectTV to compel arbitration of Diana Mey’s claim against DIRECTV for making unwanted telemarketing calls, in violation of federal consumer protection law. Rushing’s decision was based merely on the fact that Mey had signed an arbitration agreement eight years earlier with AT&Twhen she bought a cell phone. AT&T bought DIRECTV three years after Mey had signed the contract, and Rushing held that was enough to compel arbitration. Judge Pamela Harris, in dissent, argued that no reasonable person buying cellphone services from AT&T, and entering into the accompanying arbitration agreement, “would have reason to believe she was signing away her right to sue any and all corporate entities that might later come under the same corporate umbrella.” Harris emphasized the fact that Mey was never a DIRECTV customer and had never signed a contract with DIRECTV containing an arbitration clause. 

The Alliance for Justice strongly opposes the consideration of Allison Jones Rushing for a seat on the U.S. Supreme Court. 

Read more on Rushing’s background.

Rushing Confirmation Shows Partisanship More Important than Experience to GOP

On August 27,
2018, President Trump nominated Allison Jones Rushing to the Fourth
Circuit Court of Appeals for the seat previously held by Judge Allyson Kay Duncan, who is retiring. Rushing, who was born
in 1982, appears to be the youngest person Trump has nominated for a seat
on the circuit courts of appeals to date. Rushing’s record suggests she will
not be a fair-minded and non-biased jurist, and Alliance for Justice opposes
her nomination.

Biography

Although she is
young, Rushing’s extremely conservative credentials are well established.  After graduating from Wake Forest University in
2004 and Duke Law School in 2007, she clerked for D.C. Circuit Judge David
Sentelle, then-Tenth Circuit Judge Neil Gorsuch, and Justice Clarence
Thomas.  Rushing is a member of the
Federalist Society.  She also worked at
the Alliance Defending Freedom (ADF), which the Southern Poverty Law
Center (SPLC) has classified as a “hate group.”

Rushing is now
a corporate appellate lawyer at Williams & Connolly in Washington, D.C. Illustrative of her
practice, Rushing represented Ernst & Young in Ernst
& Young LLP v. Morris,which later was consolidated with Epic
Systems Corp. v. Lewis,
138 S. Ct. 1612 (2018).  Rushing argued that employees who were denied overtime pay could then be
deprived by their employers of the right to unite and join as a class action in
arbitration under the National Labor Relations Act.  In a 5-4 decision, the Supreme Court ruled to
make it harder for workers to enforce their rights.

Alliance
Defending Freedom

Rushing worked
as a legal intern at ADF, which “has supported the recriminalization of
homosexuality in the U.S. and criminalization abroad; has defended
state-sanctioned sterilization of trans people abroad; has linked homosexuality
to pedophilia and claims that a ‘homosexual agenda’ will destroy Christianity
and society.” In addition, SPLC noted that “[s]ince the election of President Donald Trump,
the ADF has become one of the most influential groups informing the administration’s
attack on LGBT rights working with an ally in Attorney General Jeff Sessions.”

Rushing also
co-authored a 2005 article with ADF Senior Counsel Jordan Lorence,
titled Nothing to Stand On: “Offended
Observers” and the Ten Commandments. Lorence’s advocacy includes fighting against the rights of the LGBTQ
community, with specific focus on the right to marry.

The Rushing-Lorence
article criticizes and demeans those who seek
to enforce the First Amendment’s Establishment Clause, arguing that the Court’s
standing jurisprudence “provide[s] a loophole for every village secularist to
charge into court with the ACLU and challenge governmental acknowledgements of
religion, no matter how passive or benign. These delicate plaintiffs with
eggshell sensitivities— who claim deep offense at the acknowledgement of any
beliefs that conflict with their own—then seek court orders censoring the
religious message, as a type of ‘heckler’s veto.’”

Rushing
and Lorence continue: “[o]nce these hecklers are allowed in court, their
opinions override those of the rest of the population, including our duly
elected representatives in the government. Granting anti-religious observers
veto power to drive all religious references from the public square replaces a
‘sense of proportion and fit with uncompromising rigidity at a costly price to
the values of the First Amendment.’”

In addition to
writing this article, skeptical of efforts to enforce separation of church and
state, Rushing has used her platform as a conservative lawyer to mentor other
ideologues through ADF’s controversial Blackstone Legal Fellowship program. As
described in one article, ADF develops and promotes “legal actions and its
various legal training programs” – such as the Blackstone Legal Fellowship program
– to focus “on fighting for the criminalization of abortion; against the rights
of LGBT people; for so-called religious liberty (which often comes in the form
of defending clients who wish to discriminate against gay people based on their
religious beliefs); and for organized Christian prayer in government or
public-school settings.”

Rushing spoke to
lawyers and law students at least three times through the Blackstone Legal
Fellowship program, in 2013, 2015, and as recently as 2017. Her affiliation
with these organizations demonstrates her commitment to the conservative legal
movement, which is no doubt one reason why she was selected for a federal
judgeship.

Defense of Marriage Act

In 2013, Rushing
participated in a panel at Capitol Hill Baptist Church titled “Henry Forum:
‘Enemies of Mankind’: Religion and Morality in the Supreme Court’s Same-Sex
Marriage Jurisprudence.” In this discussion, Rushing frequently referenced
Justice Antonin Scalia’s opinion that the holding in United States v. Windsor, 570 U.S. 744 (2013), departed from
“traditional” concepts of marriage and morality.

Rushing said that the Defense of Marriage Act (DOMA) “explicitly stated
that its purpose was ‘protecting the traditional moral teachings reflected in
heterosexual-only marriage laws’” and that “[t]he congressional record
indicated that DOMA reflected ‘moral disapproval of homosexuality, and a moral
conviction that heterosexuality better comports with traditional (especially
Judeo-Christian) morality.’”

Rushing then highlighted the dissenting justices in Windsor who emphasized “the fact that
DOMA codified the definition of marriage that had prevailed throughout most of
human history and, at the time of DOMA’s enactment, had been adopted by every
State in the nation and every nation in the world, was evidence that the law did
have a valid basis, or at least explained how lawmakers could enact such a law
motivated by something other than hatred.” Additionally, she noted how “[m]ost
interestingly, the dissenters observed that the majority could have decided the
case on legal principles that would have accused DOMA’s supporters simply of
making a legal error, which is an error that one could make in good faith. But
instead, the majority chose the [sic] write the opinion in a unique way that
calls it bigotry to believe that homosexuality does not comport with
Judeo-Christian morality.”

Rushing’s
characterizations show an affinity for the dissent’s arguments in Windsor,
presenting support of DOMA in a positive light and favorably comparing Justice
Scalia’s dissent to Justice Anthony Kennedy’s majority opinion. This is
especially disturbing at a time when the LGBTQ community faces incredible
hostility from the Trump Administration and threats to its rights in the
courts.

Conclusion

Allison
Rushing’s nomination is part of Trump’s takeover of the courts. Rushing
exemplifies the young, minimally qualified and highly ideological type of
judicial nominee that the Trump Administration has sought since it began. Like
many other Trump nominees, she appears to have been chosen on the basis of her
record of commitment to conservative causes and organizations rather than her
legal career and experience. This raises serious questions about her ability to
be an impartial arbiter in the courtroom, and to protect justice and equality
for all, not just the privileged few. AFJ opposes her confirmation.