Confirmation hearings for federal appeals judges are usually dry affairs. They’re sparsely attended by the media, and senators don’t often stay beyond the time they have to be there. But this week featured some remarkable moments, as Democrats pressed several appointees of President Donald Trump on their exceptionally radical views.
Trump nominated John K. Bush, a lawyer from Louisville, to serve on the US Court of Appeals for the Sixth Circuit. Like so many of us, Bush tried his hand at blogging on various TypePad and WordPress accounts in the aughts. He blogged as “G. Morris” on his wife’s blog, “Elephants in the Bluegrass.” Unlike many of us, he frequently espoused phony stories from paranoid right-wing Internet corners, including those that advanced the racist conspiracy theory that Barack Obama was born in Kenya. He often quoted stories from WorldNetDaily, which is run by conspiracy crank Joseph Farah and helped lead the early birther charge.
Senator Al Franken pressed Bush on this, and it made Bush so uncomfortable it’s almost painful to watch:
“You used the G. Morris alias when you wrote a series of posts about President Obama that seemed to focus on the president’s Kenyan heritage. One of those posts quotes freely from an article on World Net Daily, a website known for peddling conspiracy theories, fake news, and white nationalism,” Franken said. “How did you decide which sources to rely upon in your writings and how did you decide which sources were credible?”
Bush stumbled over his answer. “As a blogger, I was finding things that were in the news that were of note. I thought—I wasn’t intending to, through the post, to say that President Obama was not born in this country. I never—,” he stammered, before Franked repeatedly pressed him about his judgment, which is a pretty key quality for…judges.
The paper trail of “G. Morris” goes far beyond birtherism. He called slavery and abortion the “two greatest tragedies in our country,” and analogized Roe v. Wade to the Dred Scott v. Sandford decision that said slaves could not be citizens.
Somehow, Bush wasn’t the only problematic blogger-cum-jurist under review by the Senate this week. Damien Schiff, Trump’s nominee for the US Court of Federal Claims, also ran a blog called “Omnia Omnibus” on Typepad. In June 2007, he called Justice Anthony Kennedy a “judicial prostitute.” He also expressed extreme anti-gay views on several occasions; in 2009, he criticized a California school district for advancing the idea “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.” According to a Lambda Legal Foundation analysis, Schiff adheres to the idea that “natural law” trumps constitutional rights—that morality matters above all. (Gay identities and relationships, in his view, would be unnatural.)
Senators similarly pressed Schiff on these views, and Schiff went through the familiar ceremony of contrition and self-denunciation: He was a different person then, he doesn’t believe anything like that anymore, and he’s ready to be a serious jurist.
This was too much for Senator Sheldon Whitehouse, who made it clear he thinks Schiff was nominated because of his far-right views, particularly on the rights of corporations, which Schiff appears to think are near-absolute. “To have you say that 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 you can be held accountable for—when those are exactly the flags that you sent up that got you in that seat here in the first place,” Whitehouse said.
Whitehouse didn’t even bother to question Schiff; he made a three-and-a-half minute statement and then ceded his time by saying, “It’s just astounding to me to be sitting here and having this be treated as if it’s normal. It just isn’t normal, Mr. Chairman. I yield back.”
The bigger picture is that Trump is rapidly filling up the federal bench, which is relatively barren thanks to eight years of Republican obstruction in the Senate. Trump is moving much quicker than Obama did: At this point in his presidency, Obama had made four appointments, including now–Supreme Court Justice Sonia Sotomayor. Trump has made 17 nominations, including Justice Neil Gorsuch.
And the records of his nominees are unprecedented. Kristine Lucius worked for 14 years as a top legal and policy adviser to former Senate Judiciary Chairman and ranking member Patrick Leahy. She is now an executive vice president at the Leadership Conference, and told The Nation she was shocked by the Schiff and Bush nominations.
“I’ve literally worked on hundreds of judicial nomination hearings, and I have never seen one with records like this,” she said. “I have found it stunning that two individuals with this kind of controversial written record made it through the vetting process.”
The public didn’t know about most of Schiff and Bush’s writings until they were disclosed in paperwork filed to the Judiciary Committee, but it’s an open question when the White House counsel’s office and the Senate Republicans who recommended the nominees knew about it. “Is this something they did not know, so they couldn’t calibrate in their recommendation, or is it something they knew and they thought [would be] good for what is supposed to be an independent or impartial branch of government?” said Lucius. “And if it’s the latter, it’s downright frightening.”
Radical appointees like this will ensure the radical policies of Trump and Mike Pence will be with us long after they leave the White House. And there are short-term dangers as well. “I think we are seeing the American people learn an important civics lesson right now, which is about separation of powers,” Lucius said. “Right out the gate in the Trump presidency, the judicial branch was a check on the executive branch with enjoining his biased Muslim ban. There was an instant civics lesson of, ‘wow, the courts are willing to stand up to this president.’ And now the question is, will the Senate stand up to this president?”
The Judiciary Committee votes on Schiff and Bush have not been scheduled yet. If they make it out of committee, a full Senate vote is next.