By way of an example Durbin asked, “Wouldn’t you characterize Brown v. Board of Education as a case that divided our country?”
“I wasn’t alive at the time of Brown,” Bush said. “But I don’t think it did.”
(Brown v. Board of Education, a ruling that found racially segregated public schools unconstitutional, was one of the most divisive court rulings of the 20th century.)
Following Bush’s hearing, nominee Damian Schiff took the stand. An attorney with the conservative Pacific Legal Foundation (PLF), Schiff has made clear his views on all manner of social issues. In a posting for PLF entitled “Teaching ‘Gayness’ in Public Schools,” he criticized the assumption that “homosexual families are the moral equivalent of heterosexual families.”
In a law review article six years ago, Schiff compared the Supreme Court’s ruling in an affirmative action case, Grutter v. Bollinger, one that allowed universities to use race as a factor in admissions, to the Dred Scott decision.
And, like Bush, Schiff posted for a time on a personal blog, Omnia Omnibus. The site is a cornucopia of musings and conclusions, ranging from Schiff’s thoughts on Iron Man (not a fan) to sleeping in the nude (not a fan), to Lawrence v. Texas, Supreme Court’s landmark ruling striking down anti-sodomy laws (definitely not a fan):
“I strongly disagree with the Lawrence because I can find no historical or precedential basis, pre-1868, for its limitation on the legislative proscription of sodomy.”
But Schiff’s most notable post was the one in which he labeled Justice Anthony Kennedy “a judicial prostitute”:
“It would seem that Justice Kennedy is (and please excuse the language) 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 the hearing last week, Schiff—unlike Bush—was less conciliatory when asked about his thoughts on Kennedy’s swing vote:
“The point of that blog post was not to impugn or malign any person,” he insisted, “but rather to attack a certain style of judging that is frequently applauded in the media.”
That style of judging, said Schiff, is “based upon factors other than the law or the facts.”
After Bush and Schiff testified, I spoke with Nan Aron, the director of the Alliance for Justice, a progressive advocacy group focused on the judiciary. “I’m sure these two would never get hired in a professional environment,” she said. “I’m even more sure that they don’t meet the very high standards of judicial temperament. It’s hard to see how either of these men—given their crude, coarse statements—would get hired at any corporation.”
It will be up to Senate Republicans to decide whether Bush and Schiff are “hired” for their posts, now that judicial nominees can be confirmed by a simple majority vote. Aron’s group has made public its opposition to both nominees, and her feelings about the fundamental unfitness of the two men were echoed by other senators on the Judiciary Committee, including Senator Sheldon Whitehouse —who forewent any questions to Schiff and instead used his allotted time to express his disbelief at the caliber of the nominees:
“I’ve never seen a panel that has made statements like this before, not in my ten years on this committee have I seen a panel that has a record—two panels, I guess we call it—that has a record of this kind of use of extremist, extraordinary blog posting. It’s just astounding to me to be sitting here, and having this be treated as if it it’s normal. It just isn’t normal.”
If it is not normal, it may still be by design: all of Trump’s announced nominees thus far were hand-picked by the Federalist Society, a staunchly conservative network that has effectively served as the administration’s judicial job placement service. Caroline Fredrickson, president of the left-leaning American Constitution Society, explained: “No one should have any doubt from where these picks are coming from. Leonard Leo from the Federalist Society was put in charge of the selection process and they produced a list of their pre-approved people.”