If the republic survives four years of Donald Trump, much of the damage he has done to civil liberties, environmental protections, health coverage, reproductive freedom, LGBTQ rights, and police reform can theoretically be undone. What cannot be undone, regardless of what the future may hold, are his Article III federal judicial appointees. These judges will sit for life, and many of them have been selected expressly for the long, long lifespans they will bring to the bench.
At this moment, Trump has more than 130 judicial vacancies to fill, in large part because Senate Republicans used their authority to obstruct dozens of judicial picks toward the end of Barack Obama’s second term. Trump has now named 16 potential jurists to the federal trial and appellate courts—work that has been farmed out almost entirely to the Federalist Society. Given the option to put up any number of nominees with moderate temperaments and conservative but sane academic or intellectual records—conservatives in the mold of Neil Gorsuch, Trump’s successful choice for the Supreme Court—the decision seems to have been made that these jobs should instead go to polemicists and bomb-throwers, performance artist lawyers who have spent their intellectual lives staking out absurd and often abhorrent legal positions.
On Wednesday, three of them had a turn before the Senate Judiciary Committee: 44-year-old Kevin Newsom, an 11th U.S. Circuit Court of Appeals nominee from Alabama; 52-year-old John Bush, a 6th Circuit nominee from Kentucky; and 37-year-old Damien Schiff, a nominee for the U.S. Court of Federal Claims, which oversees environmental and agency suits. With the exception of Newsom, this was no ordinary slate of wonky, diligent legal thinkers. Bush and Schiff are to blogging as the president is to tweeting: all in.
Schiff, an attorney at the Pacific Legal Foundation, has a sideline as a blogger. In a 2007 post on his personal blog, he wrote, “It would seem that Justice [Anthony] Kennedy is (and please excuse the language) 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.” In 2009, Schiff railed against the anti-bullying program in a California school district: “I have not seen the proposed lesson, but … it seems to teach not only that bullying of homosexuals is wrong, but also that the homosexual lifestyle is … good, and that homosexual families are the moral equivalent of traditional heterosexual families.” Schiff then added: “Perhaps someone will respond: would you have objected to an anti-racism curriculum being taught in 1950s Arkansas? I guess my answer there would be a qualified yes, that I would have objected, not that I would approve of racism, but that, as a prudential matter, the best way to get people to drop their racist views would not be to force the teaching of their children.”
Referencing Schiff, Sen. Sheldon Whitehouse observed that “if President Obama had sent in a nominee who had called Justice Kennedy a ‘judicial prostitute,’ the other side of this dais would have its hair on fire.” Whitehouse didn’t even bother to question the lawyer/blogger, yielding his time with the observation that “this just isn’t normal.”
Then there is Bush, who is becoming a familiar type in the fake news era. Blogging under a pseudonym, the Kentucky lawyer wrote more than 400 posts for the website Elephants in the Bluegrass. His wide-ranging and unfiltered commentary has included, for instance, the claim that abortion and slavery are “[t]he two greatest tragedies in our country.” His blog posts have cited conspiracy theories and false information, including references to the claim that President Obama was not born in the United States. In his Senate questionnaire, he described the vicious 1991 beating of Rodney King as a “police encounter.” As Eleanor Clift notes in the Daily Beast, he has also gone on record arguing that the Supreme Court made a bad ruling in the landmark freedom of the press case New York Times Co. v. Sullivan. In the Trump era, that’s a feature, not a bug.
Members of the Judiciary Committee must typically comb through decades of writing to find this volume of inflammatory material. By collecting years’ worth of this stuff on their own blogs, Schiff and Bush made a bunch of staffers’ jobs a whole lot easier. When it came time to testify, though, both men tried to argue that what they’d written back then somehow didn’t reflect their views now.
In his hearing Wednesday, Bush simply took the position that, while he had written all of these things, they were simply “political” ideas that wouldn’t affect his work as a jurist. He apologized for his use of anti-LGBTQ slurs and insisted that once he dons the black robes, he will be a new man, cleansed of all such beliefs and positions.
When Sen. Dianne Feinstein pressed him on when he would decline to follow court precedent, Bush replied, “There are absolutely no circumstances in which I would decline to follow precedent if confirmed … and I would follow Roe v Wade, Casey, and all of the decisions that have come after that important decision.” This claim forced Feinstein, as Ronn Blitzer at LawNewz observed, to interrupt Bush to remind him: “You’re under oath.” Later, when Feinstein pressed Bush on whether he still viewed Roe as a “tragedy,” as he had posted, Bush replied “I believe that [Roe] is a tragedy,” he said, “in the sense that it divided our country.”
Sen. Al Franken questioned Bush on his reliance on stories from World News Daily, which has trafficked in birtherism, hate speech, and any number of conspiracy theories. Bush replied that “as a blogger I was finding things in the news that were of note,” and that he didn’t intend to say that Obama hadn’t been born in this country. When Franken pressed him on how he determined which sources were credible, Bush said he couldn’t recall. In the event that this might all be perceived as a partisan horror show, let the record show that Sen. John Kennedy, a Republican from Louisiana, was equally frustrated by Bush’s nonanswers. “I’ve read your blog. I’m not impressed,” Kennedy observed tartly.
Schiff was, according to NPR correspondent Nina Totenberg’s report, far more combative than Bush, although fewer senators stayed around to question him. The nominee sort of apologized for calling Anthony Kennedy a person who takes money for sex, saying, “The language that I used I acknowledge to be intemperate and uncharitable.” He then blamed everyone else for his own word choice. In response to a question from Feinstein, Schiff took a page from Trump’s playbook and blamed the media. “The point of that blog post was not to impugn or malign any person,” he insisted, “but rather to attack a certain style of judging that is frequently applauded in the media.” One might point out that Schiff in fact was the media in that scenario, but it hardly matters—the press forced Schiff to call Anthony Kennedy a prostitute. John Kennedy expressed what everyone else was thinking when he asked of Schiff, “What is it about your generation that you think you have to write this stuff down?”
Perhaps the same Trump administration that continues to insist that a racist, misogynist purveyor of hate speech was magically transformed into FDR the day he took the oath of office truly believes that lawyers who spew invective and conspiracy theories are suddenly coated with impartial fairy magic on the day they don the black robes. All of this shows what a sham confirmation hearings have become, with their no-account efforts to probe judicial “character” and “temperament.” Past deeds no longer matter. We need only a crystal ball and a promise. That’s why Sheldon Whitehouse didn’t even bother to question Schiff on Wednesday. If the past is no predictor, why waste all of our time? As he put it: “How do you say that’s a door that you are closing and that a whole new Damien Schiff is going to emerge in black robes and all of the things you’ve said in the past don't matter and aren't things that you can be held accountable for?”
To which the response, not offered by Schiff or Bush but ricocheting around the chamber, is quite simple: You say it because you can.