By Gregory York
President Trump has officially nominated John K. Bush to the U.S. Court of Appeals for the Sixth Circuit, and Damien Schiff United States Court of Federal Claims. Their confirmations will be held Thursday, July 13. Both nominees are vocal advocates of dismantling first amendment protections, raising serious concerns over judicial impartiality.
John K. Bush has, on multiple occasions, criticized journalists right to free speech.
In 2009, Bush attended the Federalist Society panel, The Constitution and the Importance of Interpretation, in which he explicitly derided the Supreme Court’s decision regarding New York Times v. Sullivan, saying it “wasn’t correctly decided.” A reversal on this decision would enable the president to legally punish news organizations that published items the president determined to be offensive.
Under the pen name G. Morris, Bush also contributes to the controversial blog “Elephants in the Bluegrass,” operated by his wife Bridget M. Bush. Here, the Kentucky lawyer writes a stream of consciousness about his myriad radical stances on boilerplate Republican viewpoints. He has ridiculed activist judges, condemned privacy protections and equated abortion to slavery.
When senators questioned the lawyer’s extremist positions on the blog, Bush maintained his beliefs do not influence his judicial decisions.
In response to the questions, Bush stated, “It is not appropriate to bring politics to the bench, and if I am fortunate enough to be confirmed, I will not bring politics to the bench.”
This is untrue. Bush has a long history of his extremist ideas affecting judicial decisions. As far back as the 1990s, Bush coauthored a brief opposing women’s rights to attend the state-funded Virginia Military Institute. At the time, Bush stated women had no right to attend the college. He argued that the Fourteenth Amendment did not apply to this situation due to “different developmental needs of most young women.”
The other nominee is Damien Schiff, a long-time Trump loyalist, and a lawyer working for the Pacific Legal Foundation.
Schiff is considered hyper-partisan. He famously called Chief Justice Anthony Kennedy a prostitute for siding with Constitutional law over the political party goals. He has written Op-eds across numerous platforms, and seems single-mindedly obsessed with dismantling every consumer protection America has ever enacted.
He believes collective bargaining should be unconstitutional, and is vocally opposed to the Clean Air Act, the Clean Water Act and the Endangered Species Act. Schiff asserts regulations serve no real benefit, but instead exist only to “stop productive activity that activists or bureaucrats dislike.” How Schiff defines productivity is unclear, but he does offer comically high economic estimates that could easily be achieved once we started dumping lead into our drinking water.
More alarming, Schiff argues state attorneys should not have the authority to investigate businesses for fraud. His argument is that businesses are people, and have a constitutional right to assemble in groups, even though they are one person. This circuitous together-with-oneself logic that prevents businesses from being investigating exists inside of the mind of the person Trump has nominated to the United States Court of Federal Claims.
Both nominees were provided by the Federalist Society, a public policy group funded by the Koch brothers’ foundation and Verizon, among others.
The society works to increase constitutional protections for corporations. They are known most famously for their work in helping to enact Citizens United, allowing corporations to spend unlimited resources to influence the political process.
Why the president wants these two men is clear. This group ascribes to unitary executive philosophies (that the president holds total control of the executive branch). He is violently sensitive to news organizations, and having their first amendment rights removed would allow the president to squelch negative news articles about him. Judges who bar state attorneys from business investigations would provide cover against any claims surrounding emoluments.
What’s isn’t clear is why anyone serving in the Senate would want to confirm these judges.
Trump is a president who executes policy primarily through executive order, and these nominees support giving the president enormous power.
One of the most sacred elements of the Constitution that make America a functioning democracy is its separation of powers. They must show a proven respect for the law, and have a clear history of unbiased judicial execution. These two men are the very antithesis of that. The abstract belief that laws are carried out in way that is fair and equal is the only thing that holds this country together. As partisan and as vitriolic as we as Americans can get, it is critical to the preservation of democracy there be one group we all agree is right.
It may be tempting to take our thirty pieces of silver, to believe it’s for the for the greater good of the party. This, however, is the very last institution most Americans trust. If we destroy faith in the judiciary by blindly following party hubris, it isn’t coming back.
(Cover photo by Bobak Ha’Eri, available through Wikimedia Commons.)