No bars opened early. Photographers and reporters didn’t crowd the hearing room. And senators showed up in drips and drabs, asked their questions, and snuck out. Regardless, the Senate Judiciary Committee hearing on June 14, 2017 was one step toward enshrining the legacy of Donald J. Trump for generations to come—no matter how long his tenure as president lasts.
This hearing, covering two circuit court nominees and another to the federal claims court, was not business as usual. Ordinarily, the Judiciary Committee gives circuit court nominees their own hearings, allowing senators several rounds of thorough questioning. This hearing was so rushed that even Senator Tom Tillis (R-NC) got mixed up as to which nominee wrote what. It would be surprising if other senators weren’t confused given that both circuit court nominees were grilled together!
Seated together before the nearly empty row of committee chairs were Sixth Circuit nominee John K. Bush — a Louisville attorney who enjoys the enthusiastic support of Senate Majority Leader Mitch McConnell — and Kevin Newsom, former Solicitor General of Alabama, nominee to the Eleventh Circuit Court of Appeals. And what a pair they were.
Kevin Newsom appeared thanks to the fact that Alabama senators Jeff Sessions and Richard Shelby refused to return their blue slips, signing off on President Obama’s nominee, Judge Abdul Kallon who would have been the first African-American to sit on the 11th Circuit from Alabama.
Newsom has argued that Title IX which protects against gender discrimination in education does not protect individuals who claim discrimination from retaliation. And he has questioned the legal doctrine of substantive due process, pivotal to protecting abortion and LGBTQ rights. He fielded some questions but, luckily for him, John Bush—sitting to his right—had an even more troubling record to defend. No doubt if Newsom had had his own hearing, senators would have explored his record and views more thoroughly as is fitting when considering whether to grant life tenure on such an important court.
Indeed, John K. Bush attracted most of what questions could be squeezed in during the single round of five-minutes per senator. Bush, one of President Reagan’s attorneys during the Iran-Contra investigation, was essentially wearing two hats—one as a conservative lawyer with all the bona fides one would expect from a Trump nominee and, another, as a blogger on his wife’s blogsite, writing under the pseudonym G. Morris.
Bush aka G. Morris’ blogposts were shockingly extreme: referring to “the two greatest tragedies in our country—slavery and abortion;” calling for then-Speaker Nancy Pelosi to be “gagged;” referring to then-Senator Obama as ‘Senator Moneybags’ and promoting the lie that Obama was born in Kenya. Sen. Franken hammered Bush on his reliance on racist fake-news sources. Bush refused to answer why he used such a widely discredited source. Sen. John Kennedy (R-LA), one of the more conservative committee members, humphed that he was not “impressed” by his blogs.
As Bush repeatedly explained that his blog posts were “political” and would not influence his ability to be a fair and impartial jurist and apologized for his public use of anti-LGBTQ slurs, one couldn’t help wondering about his judicial temperament.
His record on his day job is troubling as well: support for excluding women from Virginia Military Institute (a position rejected by the Supreme Court), support for allowing more money in politics, and his opposition to the landmark Supreme Court case, New York Times v. Sullivan, which protects journalists covering public officials.
Again, this stacked, rushed hearing saved Bush from what we can only hope would have been more probing questions and scrutiny. Somehow the follow-up written questions just don’t cut it when it comes to shining a light on someone about to make decisions impacting every aspect of our lives for the next 30 years or so.
Finally, 38-year-old Damien Schiff from the Pacific Legal Foundation (PLF) got his turn. His nomination to the Federal Claims Court, a court with national jurisdiction that hears monetary claims against the federal government, would be for 15 years.
It’s always a bad sign when a judicial nominee has to begin his hearing with an apology, especially if it is for insulting a Supreme Court justice. Schiff had called Justice Anthony Kennedy a “judicial prostitute,” a remark that was universally decried and certainly raised the question about his legal temperament. Senator Sheldon Whitehouse (D-RI) observed that if an Obama nominee had insulted Justice Kennedy that way, “the other side’s hair would be on fire!”
A staff attorney at the Koch Brothers-funded Pacific Legal Foundation which is devoted to undoing the ‘regulatory state’ established by the New Deal, Schiff shares the PLF’s animosity towards environmentalists, the EPA, OSHA, labor unions, and any campaign finance laws (a partial list). He has gone on record opposing the landmark Lawrence v. Texas case which opened the door to civil rights for LGBTQ Americans and marriage equality. Senator Franken was openly incredulous at Schiff’s piece “Teaching Gayness in Public Schools” which excoriates anti-bullying curricula. Many of Schiff’s views were expressed in blog posts on the PLF’s website.
This extraordinary stacked hearing illustrated the impact that Trump will have regardless of how those other blockbuster hearings turn out. Say what you will about his ‘stalled’ policy agenda. This is one very crucial piece of his agenda that is rushing forward at alarming speed to the detriment of the future of our justice system. And there are—as of this writing—146 judicial vacancies for Trump to fill.
So maybe it is time to belly up to the bar and turn our TV’s and attention to the Senate Judiciary Committee’s hearings on the potential judges on whom we will depend to safeguard our rights and provide the judicial check on the Executive Branch that the Constitution envisioned.