Even before his committee hearing, it was clear that President Trump’s nominee to the Sixth Circuit, John K. Bush, has a deeply disturbing record that shows him to be unfit for the bench. His post-hearing responses to committee members’ written questions for the record (QFRs) make it all the more bizarre that he was even considered, let alone nominated, to become a federal judge.
His responses are not just unsatisfactory. They are ludicrous. He responded to the Judiciary Committee with 59 pages of dissembling, evasion, and “alternative facts” spanning a wide range of issues. What follows is just a sample.
Originalism: Bush’s Approach to Interpreting the Law
Bush has called the extremely conservative doctrine of originalism the “only principled way” to interpret the Constitution, claiming it was better than other approaches because “it’s a matter of common sense.” If we take Bush at his word in his written responses about originalism—and they were all submitted under oath—then it’s hard to imagine how he passed the time at Harvard Law School or became a Federalist Society leader without having given serious thought to the issue.
For instance, Ranking Democrat Dianne Feinstein asked Bush what an originalist approach to the constitutional right to marry someone of a different race would be. The Supreme Court upheld this right in Loving v. Virginia.
Bush: I have not had occasion to study this decision of the Supreme Court in light of any methodology of constitutional interpretation. If confirmed to the Sixth Circuit, I would apply Loving faithfully, as I would any precedent of the Supreme Court.
This is hard to swallow. Loving was decided in 1967. Bush attended Harvard Law School from 1986-1989. It is hard to believe that his constitutional law classes—while carefully analyzing, discussing, and debating various approaches to interpreting the Equal Protection Clause and the nation’s most important cases doing so—somehow omitted Loving.
Sen. Coons asked about a major criticism of originalism: It is inconsistent with Brown v. Board of Education, which rejected it as a model. Bush replied that “I have not studied the issue.” That is interesting, since Brown is perhaps the most important Supreme Court decision of the twentieth century, and its legal reasoning is a subject of great discussion in every law school in America. (Even Harvard.) So Bush writes that originalism is superior to all other methods of constitutional interpretation, even though he has apparently “not studied” one of the major criticisms of the doctrine.
His response to Sen. Blumenthal’s questions about the constitutional right to privacy, first elucidated in 1965 in Griswold v. Connecticut, was just as hard to take seriously. Griswold held that criminal laws preventing married couples from using contraception violate their constitutional right to privacy—even though the Constitution does not explicitly refer to privacy. Abortion rights and LGBTQ rights subsequently protected by the Court are among those that rest upon the right to privacy, based on the 14th Amendment’s Due Process Clause. These cases are vociferously condemned by the far Right as “making up rights” and “making law rather than interpreting it.”
Yet Bush informed Sen. Blumenthal that “I have not had occasion to study Griswold in detail.” As with the other cases, you cannot go through law school without studying the seminal right to privacy case in detail. And apparently you can serve as president of the Louisville chapter of the Federalist Society for twenty years without any serious discussion of the case and the doctrine it launched, even though constitutional interpretation and the concept of unenumerated constitutional rights is an area of great interest and importance to the Federalist Society.
Bush refused to say whether he thought Griswold, which is long-settled law, was decided correctly. Even then-Judge John Roberts told senators at his Supreme Court confirmation hearings that he thought Griswold had been correctly decided. But not Bush, who may be set on “unsettling” the long-settled precedent.
Stunningly, the nominee went even further than “just” claiming he hadn’t thought about originalism in the context of particular cases: He actually told the committee that his approach to interpreting the Constitution is irrelevant to the senators’ consideration.
Noting Bush’s public advocacy of originalism, Sen. Feinstein asked him if judges should always use originalism to interpret the Constitution. Bush’s response was an arrogant rebuke to any committee member doing their job to vet judicial nominees:
My personal views on constitutional interpretation will be irrelevant if I am fortunate enough to be confirmed to the Sixth Circuit. As a lower court judge, I would be bound to apply the precedents of the Supreme Court and Sixth Circuit in deciding any question of constitutional interpretation that comes before me. As I also said in the March 2009 panel discussion, judges should respect precedent.
Asking nominees about the approach they would take to interpreting the law is not at all like asking them their position on a specific issue. Bush has said he’s an originalist. But Bush doesn’t bother to explain why that isn’t relevant to the committee or why it’s inappropriate to discuss. He simply stonewalls the committee, informing them of his intent to defy their ability to pursue one of their key responsibilities in the examination of every judicial nominee.
Even more vexing, suggesting that his approach to legal interpretation would be irrelevant because he would always follow Supreme Court and Sixth Circuit precedent is outright false. Like all circuit courts, the Sixth Circuit is called upon to answer constitutional questions that neither it nor the Supreme Court has ever addressed before. Such “cases of first impression” include:
- Green Party of Tenn. v. Hargett, 767 F.3d 533 (Sixth Circuit, 2014): “The defendants also challenge the district court’s conclusion that Tennessee’s ballot-ordering statute violates the First and Fourteenth Amendments by granting favorable treatment to established political parties. … The plaintiffs’ ballot-ordering claim presents a question of first impression in our circuit.”
- United States v. Ross, 703 F.3d 856 (Sixth Circuit, 2012): “The issue of a remedy for deprivation of counsel at a competency hearing is a question of first impression in this Circuit.”
- Van v. Jones, 475 F.3d 292 (Sixth Circuit, 2007): “This is a difficult case presenting a question of first impression for a United States appellate court. We affirm the judgment of the district court that a Michigan consolidation hearing is not a critical stage and that the total absence of counsel at such a hearing does not require that a writ of habeas corpus issue.”
Like any lawyer and law school graduate, John Bush is well aware of this. He is also aware that, if he is confirmed, he would be called upon to address statutory cases of first impression even more frequently. Three such cases just in 2017 include:
- NLRB v. Alternative Entertainment Inc., 2017 U.S. App. LEXIS 9272 (Sixth Circuit, 2017): “The NLRB argues that AEI violated the NLRA by barring employees from pursuing class-action litigation or collective arbitration of work-related claims. … Whether federal law permits employers to require individual arbitration of employees’ employment-related claims is a question of first impression in this circuit.”
- Byrne v. United States, 857 F.3d 319 (Sixth Circuit, 2017): “The parties vigorously disagree as to which standard of review applies in the instant case. Appellants claim that the determination of liability under 26 U.S.C. § 6672 [part of the Internal Revenue Code] presents a mixed question of law and fact, while Appellee argues that the determination of willfulness under § 6672(a) is a question of fact. Which standard of review applies to the district court’s determination that a responsible person willfully failed to pay trust-fund taxes is a question of first impression in this court.”
- Sanders v. Jones, 845 F.3d 721 (Sixth Circuit, 2017): “Jones’s absolute immunity defense presents a question of first impression about how the Supreme Court’s provision of absolute immunity for grand jury witnesses in Rehberg v. Paulk, 566 U.S. 356, 132 S. Ct. 1497, 182 L. Ed. 2d 593 (2012), intersects with the Sixth Circuit’s requirements for malicious prosecution claims where a grand jury indicted the plaintiff.”
Bush’s claim that his approach to interpretation is irrelevant in part because all he will do is follow precedent is, to be charitable, extremely misleading and disrespectful to the Senate.
The Federalist Society
Closely related to Bush’s evasions on his method of approaching a case, are his claims of complete ignorance about the fundamental tenets of the Federalist Society. Especially since he has led the organization’s Louisville chapter for twenty years, one might think he has some clue about what the Federalist Society is all about. But one would be wrong, if Bush’s QFRs are accurate.
Sen. Feinstein quoted the Federalist Society’s statement of purpose, as set forth on its website:
“Law schools and the legal profession are currently strongly dominated by a form of orthodox liberal ideology which advocates a centralized and uniform society. While some members of the academic community have dissented from these views, by and large they are taught simultaneously with (and indeed as if they were) the law.” It says that the Federalist Society seeks to “reorderpriorities within the legal system to place a premium on individual liberty, traditional values, and the rule of law. It also requires restoring the recognition of the importance of these norms among lawyers, judges, law students and professors. In working to achieve these goals, the Society has created a conservative and libertarian intellectual network that extends to all levels of the legal community.”
So Feinstein asked the 20-year president of Louisville’s Federalist Society to explain its statement of purpose. But the written exchange between Feinstein and Bush is surprising: It turns out that over the past 20 years of leadership, he actually has no idea what the Federalist Society sets out to do. Amazing!
Feinstein: Could you please elaborate on the “form of orthodox liberal ideology which advocates a centralized and uniform society” that the Federalist Society claims dominates law schools?
Bush: I do not know what the Federalist Society was referring to in that statement.
Feinstein: How exactly does the Federalist Society seek to “reorder priorities within the legal system”?
Bush: I do not know what the Federalist Society was referring to in that statement.
Feinstein: What “traditional values” does the Federalist Society seek to place a premium on?
Bush: I do not know what the Federalist Society was referring to in that statement.
Feinstein isn’t asking Bush to defend or explain a statement made by another Federalist Society member. She is asking about the Society’s public statement of purpose. And he has no idea what it means? Either Bush has been pulling a fast one on his fellow Federalist Society members for the past 20 years … or he is trying to pull a fast one on the United States Senate today.
Unfortunately, Bush’s responses in more issue-specific areas are equally implausible at best.
Roe v. Wade
Bush raised more than a few eyebrows at his committee hearing when he was asked about his blog post calling slavery and abortion “the two greatest tragedies in our country.” The post likened the effort to end abortion rights to Martin Luther King’s effort to end segregation and favorably quoted African American women condemning abortion as murder or slavery and calling for the nation to “be called back to its moral senses.”
Yet he said in the hearing that he’d simply meant Roe v. Wade and Dred Scott were tragic because they were so divisive. (As Sen. Hirono noted tactfully, “This seems in contrast with an objective reading of your blog post.”) He doubled down on this explanation in his written answers. Yet when asked if the country would be any less divided had the Supreme Court upheld the criminalization of abortion, Bush stated that “my personal views are irrelevant” to being a judge.
So he made a statement to the committee, but then refused to answer any written questions that might shed light on whether he was being honest with them.
Bush’s desperation to avoid acknowledging what his writings had clearly disclosed long ago veered from the implausible to the absurd when he essentially refused to acknowledge that abortion rights cases are being litigated across the country. Sen. Blumenthal asked if he “believe[d] that there are any unanswered questions relevant to a woman’s right to an abortion that are not covered by existing precedent.” Bush’s response:
It would be inappropriate for me to opine on a question that could come before me if confirmed to the Sixth Circuit. See Canon 3(A)(6).
This is not something to “opine” over. It is a purely factual question, and the answer is yes. Judges frequently must address what constitutes an “undue burden” on the right to abortion as states enact laws affecting abortion access. With regard to religiously-based opposition to abortion, we have no precedent yet on whether the Hobby Lobby decision regarding corporate religious exercise extends to corporations that aren’t closely held.
But if Bush had responded honestly, he would then have had to figure out how to answer the senator’s questions about what those unsettled areas might be and the methods he would use to answer them. So he made what appears to be a strategic decision: better to tell a U.S. senator something utterly absurd and obviously false than to get anywhere near discussing the abortion-slavery comment.
Judicial nominees are not expected to say how they will rule on specific issues. But they are expected to acknowledge that there are unanswered questions about those issues.
Bush also wrote that he would faithfully apply Roe and related precedents concerning abortion. Of course, that is what a judge is supposed to do. But if he believes abortion (or Roe’s “divisiveness”) to be a national tragedy as horrific as slavery, it is surprising that he is seeking a lifetime position in which he intends to recognize and protect a woman’s constitutional right to have an abortion.
If we take his assurance as sincere, what does that say about his character?
Democratic senators also probed the nominee’s explanation that he does not consider Brown v. Board of Education to be a national tragedy because it didn’t divide the nation. This was the position he boxed himself into at the hearing by claiming his statement about Roe and Dred Scott was simply about how “divisive” they were. In his QFRs, Bush stuck to his story, facts notwithstanding:
Sen. Whitehouse: You testified at your hearing that you believe Roe v. Wade was a tragedy because it “divided our country” and has “created such a division in our country.” When Senator Durbin asked you whether Brown v. Board of Education also divided our country, you stated: “I wasn’t alive at the time of Brown but I don’t think it did.”
[Do] you stand by your answer? In light of the massive resistance to school integration in the aftermath of the Brown decision please explain in detail, including with specific reference to the Southern Manifesto, why you believe Brown did not divide our country?
Bush: Brown united, not divided, our country when it brought an end to the physical division of the races under the pernicious practice of segregation. Because of President Eisenhower’s enforcement of Brown at Central High School in Little Rock, Arkansas, I was fortunate enough to attend racially integrated public school in Little Rock for all of my secondary education.
Like the president who nominated him, Bush is dealing with “alternative facts.” You don’t need to have been alive at the time of Brown to know about the massive resistance it engendered among Southern whites. It is a fundamental part of our national story and still shapes our nation. If Bush is so blind to the realities of race in America that he genuinely believes Brown was not divisive, he has no place on the federal bench. And if he is making the claim just to hold up a prior deception about abortion rights, then—again—he has no place on the federal bench.
Freedom of the Press
In this area, too, the implausibility of Bush’s QFR responses serves to augment, rather than silence, the alarm bells about his jurisprudence. One reason his nomination has been deeply disturbing is his prior writings that New York Times v. Sullivan (the seminal case protecting freedom of the press) was wrongly decided. This would be a frightening position at any time, but it is even more so when we have a president who notoriously stated during the campaign that he wants to “open up our libel laws” so he can sue journalists who write unflattering articles about him.
Bush did not repudiate his prior statements about Sullivan in his QFRs. But his responses to questions on the subject raise questions about his candor with the committee. Sen. Blumenthal brought up Trump’s statement as a candidate threatening to “open up” the First Amendment to remove freedom of the press protections.
Sen. Blumenthal: Were you aware of this statement when you sought a judicial nomination [after the election]?
Bush: Not as far as I am aware.
Bush’s claim that he is not aware if he was aware of the statement is hard to take at face value, since it was a highly-covered, much-discussed, and extremely controversial aspect of the campaign. And Bush is not a person who is generally unaware of politics; in fact, he has contributed thousands of dollars to candidates. You’d think that if he’d learned about it only after seeking to become a judicial nominee, it would have been shocking enough that he would remember it.
Inflammatory “fake news” blog posts
Senators asked Bush a number of general questions about his blog, and his responses showed about as much respect for the senators as his blog showed for President Obama (or “Barry,” as Bush called him).
One of the more disturbing aspects of this nomination is how Bush promoted the work of right wing conspiracy theorists in his blog posts, citing notoriously unreliable sources like World Net Daily. At his hearing, he would not state how he went about determining if these sources were at all reliable. So senators followed up in their written questions, but they got no better responses. In fact, Bush still refuses to state whether he believes WND is a credible source.
So why did he cite such sources?
Because the nature of the blog was to provide fast-paced commentary upon topics in the news, rather than original research, I usually relied upon readily available sources on the internet discussing topics that might be of interest to the blog’s readership.
It was my practice to review briefly and to cite any material I relied upon, to enable readers to judge for themselves the credibility of the news discussed. Given the informal nature of the commentary I provided on the blog, it was not my practice to conduct an exhaustive review of the information cited.
But this just describes what he did, not why. They aren’t exactly reassuring “reasons.” The corrosion of our democracy exacerbated by the uncritical (or worse, knowing) amplification of “fake news” was a highlight of the 2016 election and, and, sadly, has become a staple of the Trump administration. It seems Bush was an early participant in this irresponsible and damaging practice. It certainly doesn’t show the kind of judgement one would want from a jurist with a lifetime seat on the federal court.
Looking into another aspect of the blog posts, Sens. Franken and Coons asked why Bush blogged anonymously. He responded that it was “to draw a distinction between my political views and my law practice.”
That’s interesting, since Bush’s political views were hardly a secret in the community. He had bumper stickers for candidates. More importantly, he publicly gave large contributions to partisan election candidates. He made his partisan positions well known, as do millions of other Americans exercising their First Amendment rights. That makes his explanation for hiding behind a pseudonym somewhat less than credible.
He was also arrogantly evasive in filling senators in on information about when certain people central to his selection learned about his blog. While he answered questions about whether various White House and Department of Justice officials knew about the posts, he refused to state whether his home state senators, Mitch McConnell and Rand Paul, knew about them. He claimed it was because they were not “officially involved with the nomination or decision.”
That’s nonsense. It’s also not his decision to make. Bush provides no explanation for treating “official” and “unofficial” involvement differently in terms of disclosure. Mitch McConnell almost certainly played a larger role in selecting Bush than anyone within the administration. The latter may have vetted him, but—as we know from the initial questionnaire the nominee submitted to the Judiciary Committee—McConnell is the one who set the wheels in motion. Bush just came up with his own artificial distinction between “official” and “unofficial” involvement to make up a new rule about disclosure.
Based on the QFRs, we know that the Trump administration was fully aware that their nominee had posted highly inappropriate and conspiracy-tinged posts on his blog. Since Trump does the same thing on Twitter, it is no surprise that the blog post served as no obstacle to the nomination.
But Americans (and especially Kentuckians) deserve to know when McConnell found out. If the majority leader only learned about the posts after the nomination, it is certainly his prerogative to ask the White House to withdraw it.
Membership in a Club that Once Discriminated
Another ridiculous response involved Bush’s membership in a club—called the Pendennis Club—that had formerly engaged in discrimination before he joined it. The committee questionnaire asks nominees to disclose whether any organization they have been a member of “currently discriminate or formerly discriminated on the basis of race, sex, religion, or national origin.” Yet Bush did not reveal that his club had once engaged in such discrimination until Sen. Feinstein’s staff followed up on his omission.
Feinstein: At the time you filled out the Committee Questionnaire, were you aware of the Club’s discriminatory history?
Bush: I was aware that the Club had had members of different religions since its founding in the 1880s, women members since the 1980s and African American members since at least the early 1990s.
Translation: Yes, I knew I was joining a club with a long and shameful history of discrimination.
Feinstein: Why did you initially fail to disclose the Pendennis Club’s history of discrimination in your response to the Committee Questionnaire?
Bush: I understood the question to ask whether any of the clubs to which I belong or have belonged invidiously discriminated during the time of my membership. Once your staff pointed out to me that the question was broader than that, I supplemented my answers accordingly.
If we take Bush at his word—and his responses are all under oath—then how could he not have understood the question? It is not in the least bit ambiguous, and he is a Harvard Law graduate after all. So perhaps he just misread it in the rush of filling it out.
That would indicate awful carelessness in completing one of the most important forms he will ever fill out, one that he knew would be scrutinized in depth and one that he knew was under oath. It would be unusual, to say the least, to confirm someone to a judgeship who reads important documents so carelessly. But if that isn’t the real explanation for the omission, the result is the same: It would be the height of irresponsibility to confirm someone who makes false statements to the United States Senate Judiciary Committee.
Misuse of Judicial Ethics Rules
With so much to hide from the Judiciary Committee (or at least from the members who take the Senate’s independent “advise and consent” role seriously), Bush cited the Code of Conduct for United States Judges to avoid answering many of the questions posed to him. But there’s a slight hitch—the code itself lists in detail who its strictures cover: sitting judges in various types of federal courts. Nominees are not included.
To get around this, Bush cites a commentary to one of the canons: “The Code is designed to provide guidance to judges and nominees for judicial office.” But if the code was meant to fully include nominees, they would not have been carefully excluded from the list of covered people.
All the mention of nominees means is that once someone is nominated, they should cease (or not begin) any activity that might bring them into disrepute or lead others to question their independence should they be confirmed. For instance, Bush acted appropriately and as the Code suggests in removing the Mitch McConnell and Rand Paul election stickers from his car once he was nominated. If Bush had still been blogging, the Code would suggest he ought to have stopped as soon as he was nominated. That is the type of guidance the Code applies to nominees.
But the Code in no way shields judicial nominees from senators’ efforts to determine if they are qualified. At best, Bush’s QFRs demonstrate how poor he is at interpreting text. It seems more plausible that it is a cynical ploy designed to short-circuit the Judiciary Committee’s constitutional duties.
Summing it all up: This is not normal.
Donald Trump has nominated a breathtakingly unqualified man to the Sixth Circuit. His responses to senators’ questions echo the famous line from Duck Soup: “Well, who ya gonna believe, me or your own eyes?”
Unfortunately, John K. Bush is about as qualified to serve as a judge on the Sixth Circuit as Rufus T. Firefly was to serve as president of Freedonia.
Or, for that matter, as Donald Trump is to serve as president of the United States.