Trump’s Most Lasting Legacy?
America’s courts—presently a thorn in the president’s side—are about to get a lot more conservative. And they will probably stay that way for a very long time.
With the investigation into Russia and the Trump campaign, the firing of former FBI Director James Comey, the appointment of Special Counsel Robert Mueller, the already controversial healthcare bill and the never-ending saga of Press Secretary Sean Spicer, it would seem that the Trump administration is in a tailspin, grappling daily with an onslaught of unforced errors and unforeseen consequences, too busy putting out the latest fire (or dousing it with gasoline) to pay too much heed to actually moving the ball forward.
But amid all the he said-he said allegations and endless rounds of Recusal Jeopardy, there is one corner of the universe where Team Trump has been successfully executing on its campaign promises, ticking off agenda items with the humming efficiency of a well-oiled machine: reshaping the nation’s courts.
The hearings that have gotten the most airtime of late (which is to say: all the airtime of late) were ones featuring former FBI Director James Comey and Attorney General Jeff Sessions, the Senate’s equivalent of a public fireworks display—all pyrotechnics and fizz. Less seen, and certainly much less transparently exciting, were two other hearings that occurred in less packed Senate chambers only a few paces away: hearings for John Bush, a nominee to the 6th Circuit federal appeals court and Damien Schiff, a nominee for the federal Court of Claims.
Schiff and Bush are two of President Trump’s thus far 21 picks for the nearly 130 vacancies on the federal bench, an excess of open slots that exist mostly because of unprecedented Republican resistance to the confirmation of President Obama’s judicial nominees. Neither Bush nor Schiff will ever singlehandedly wield the power of, say, Supreme Court Justice Neil Gorsuch, but their nominations indicate the direction in which America’s courts may be headed under Trump. Given the extraordinary power of the courts today—especially as a check on the legislative and executive branches—a judicial branch populated with men like Bush and Schiff could mightily shift the political landscape of the United States, well after Trump has left office.
Both Schiff and Bush arrived at their hearings carrying excess baggage in the form of controversial writing. Bush, a corporate lawyer, had previously blogged under the pseudonym, “G. Morris” on his wife’s site, “Elephants in the Bluegrass.” The site features numerous posts by Bush, the most controversial of which were a comparison of Roe v. Wade to the Dred Scott decision concluding that black people could not be citizens of the United States, and one which contained questionable allegations about then-President Obama’s Kenyan roots. The post cited, by way of a source, World Net Daily — a website that the Southern Poverty Law Center characterizes as “devoted to manipulative fear-mongering and outright fabrications designed to further … paranoid, gay-hating, conspiratorial and apocalyptic visions.”
At his hearing, Bush was asked about his sourcing by Senator Al Franken. He responded, “As a blogger, I was finding things that were in the news of note. I wasn’t intending, through the posts, to say that President Obama was not born in this country.”
Franken pressed on, asking Bush how he deemed which sources were credible—and whether he believed that World Net Daily was a credible source:
Bush: As I said, when I was doing the blog, I made some posts that I today would not do. I don’t particularly recall that one, what went into the decision to use that particular story…
Franken: Let me ask you again, how did you decide which sources were credible? And how did you decide that [World Net Daily] was a credible source?
Bush: I don’t know whether I decided that or not. I just really cannot remember.
Franken: So you felt free to put posts out that cited sources that you knew were not credible?
Bush: No Senator, I am not saying that.
Franken: What are you saying?
Bush: I’m saying that as a blogger, I was making political statements—
Franken: —using sources that engaged in fake news, hate speech and again, what I was saying was, when we are confirming judges, we have to look at judgment. And in my mind, using my judgment, to confirm someone to the circuit court who felt free to blog posts and can’t answer how he decides whether to cite a source or not—whether it’s credible or not—that’s disturbing to me.
Bush ran into more problems when he was questioned by Senator Dick Durbin, who followed up on comments Bush had made earlier to Senator Dianne Feinstein, about Roe vs Wade being a tragedy, “in the sense that it divided our country.” Durbin questioned the logic behind this assessment—after all, weren’t some of the court’s most landmark cases divisive ones?
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.”
And yet, even if their provenance has been no surprise, Fredrickson was still shocked at the caliber of the nominees that Trump had put forth, echoing what Senator Whitehouse expressed at the hearing last week. “I look at them and think, this is who Trump is nominating? The idea that Obama would have nominated someone that had written something so outrageous…. The standards are so extremely different.”
John Bush is 53 years old, and Damian Schiff is 38. Most of Trump’s announced nominees are in their mid 40s—which means that, if confirmed, they will sit on their respective benches for a very long time. In addition to the fact that Trump may fill over 130 vacancies on the lower courts, the relatively young age of his stable could cement in place a conservative judiciary for decades to come.
And yet, as it concerns the public, few Americans are even aware that this is happening—let alone discussing it. The maelstrom over at 1600 Pennsylvania Avenue—the palace intrigue and endless speculation—has been very useful to the right, insofar as it has allowed the judicial confirmation process to move along unimpeded. This may prove to be the most lasting legacy of the Trump administration.
I asked Fredrickson whether Democrats were beginning to understand the dramatic landscape that stood before them. “It’s still a project to get the left to understand why the judiciary is important,” she told me. Then she added, “The president is not doing such a great job in terms of moving legislation, but if he gets the opportunity to fill those federal appointments, we are going to be living with Donald Trump for the rest of our lives.”