To: Interested Parties
From: Paul Gordon, Senior Legislative Counsel, People For the American Way
Date: June 20, 2017
Re: Trump’s Judges: This is Not Normal

Donald Trump and his administration have flouted and attacked our nation’s democratic norms so frequently that one might become inured to it. But getting used to it is a step toward normalizing it, and that poses great danger to the country. This is especially the case with Trump’s judges: The nominations of John K. Bush and Damien Schiff are truly bizarre, and their confirmation would spread the decay of our democratic norms into the judicial branch, the most important bulwark we have against Trump’s overreaching and corruption.

Both men have records so atrocious that it’s amazing they could even be considered for the federal bench. PFAW has explained why the Judiciary Committee should reject Damien Schiff’s nomination to the Court of Federal Claims and why John K. Bush should not be confirmed to the 6th Circuit.

Here is a quick summary:

John K. Bush has criticized the Supreme Court case of New York Times v. Sullivan, the seminal freedom of the press case that protects journalists’ ability to report critically about public officials without fear of retaliation. During normal times, this alone would prevent a president from nominating him. But we have a president who wants to “open up our libel laws” to allow him to go after critical journalists, and who calls the media the “enemy of the people.” A year ago, Bush’s position on Sullivan would have jolted the White House not to nominate him, or the Senate not to even consider confirming him.

But these are not normal times.

Bush has also written numerous posts for a blog called Elephants in the Bluegrass. They were crude, obnoxious, partisan hack jobs that he dared not put his name to, so he wrote under a pseudonym. We do not require nominees to behave as judges at times when they were not on the bench, but we do require them to act with a modicum of decency and self-restraint. Bush’s blogging came to light only because he was forced to disclose all of his writings to the Judiciary Committee.

In 2008, Bush crudely—and anonymously—attacked then-Sen. Barack Obama for foregoing public financing, calling him “the new Monica Lewinsky” and even referencing cigars. He referred to President Obama as “Barry,” a term of derision used by those with the most vitriolic and raging hatred of the president, and truly bizarre for someone expected to put his opinions of the president aside in doing his job. He called the veterans group VoteVets “verminous.” He even trafficked in birtherism and cited widely recognized “fake news” sites like World Net Daily as reliable sources of information.

And when he blogged about the GOP convention, he mentioned calls to imprison Hillary Clinton only in brief, made a joke of it, and moved on to the next topic. He was not bothered at all by talk of a president locking up his political opponents. And he has been nominated to be a federal judge deciding our most important constitutional rights.

This is not normal.

Damien Schiff has also written blog posts and other material that would have disqualified him from the bench in any other time. Most notoriously, in a column in which he crudely and personally attacked Justice Anthony Kennedy, he called the justice:

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.

At his confirmation hearing, Schiff insisted that he had not intended to insult Justice Kennedy, but only to criticize a method of judging that, according to Schiff, is not used by Justice Kennedy, any other member of the Supreme Court, or any sitting judge that he can think of.

And yet he concluded the blog post this way:

Perhaps the legal media would better serve the Republic if, instead of perpetuating the myth of the “Great Sphynx of Sacramento,” it excoriated the Justice for trying to be a statesman and a legislator in the wrong Branch.

But the bizarre nature of Schiff’s nomination goes beyond demeanor; it goes to litigants’ belief that they would be treated fairly and equally under the law in his courtroom. For instance, he has ridiculed and impugned the motives of environmentalists. He once stated that environmentalists use the Endangered Species Act to “push an agenda that has more to do with stifling productive human activity than fostering ecological balance.” He has also written that laws to protect the environment “can be used instead as pretexts to achieve other agendas, typically the blocking of the reasonable use of public and private property.”

It is one thing to ridicule a legal argument. It is another thing altogether to proclaim that litigants you disagree with have a secret agenda that involves deliberately harming people for reasons unrelated to the environment. And now Schiff has been nominated to the Court of Federal Claims, which hears a number of environmental cases, and where judges are expected to hold fair proceedings treating all parties equally.

And his legal views are as far from the mainstream as one can imagine. He would likely declare unconstitutional nearly every law that protects the rights and health of ordinary people. In a 2008 blog post entitled “Federalism and the Separation of Powers, Day II,” he called for the Supreme Court to bypass the other branches and “overturn precedents upon which many of the unconstitutional excrescences of the New Deal and Great Society eras depend.”

This is not normal.

Within the executive branch, President Trump has selected clearly unqualified people to lead the Departments of Education, Energy, and Housing and Urban Development. Now he is doing the same to the United States judicial system, which is supposed to serve not only as intelligent interpreters of the law, but also as steadfast guardians of the rights of all.

In any other administration, these men would never have made it through the vetting process. And in any other time, even if they somehow were nominated, they would face unanimous opposition from the Judiciary Committee.

These are not normal times. And they should not be reported as such.